The right to strike and the gentlemen's agreement between the industrial relation partners

Recently, quite some commotion arose in the media because the industrial relations partners failed to update their gentlemen’s agreement about the way of exercising the right to strike. A number of politicians started jostling immediately for a place in the media to have their say. 

But, do we really need such a gentlemen’s agreement?

The right to strike is – directly or indirectly – recognized in a number of international documents, including the European Social Charter and the EU Charter of Fundamental Rights. While Belgian legislation does not include such a direct recognition, the Belgian judiciary accepts that the right to strike is at least indirectly accepted in Belgian law. Moreover, the European Social Charter having direct effect, is generally considered to be the legal basis of the right to strike within the context of Belgian law.

So, while the right to strike as such is not an issue (any more) in Belgium, heated discussions may arise as a result of the way this right is exercised by the workers and challenges aiming at the way the right to strike is exercised are quite often – wrongly, in our opinion –  presented by the trade unions as challenges of the right to strike itself.

Then is when differences in opinion between both camps risk to become unbridgeable.

Part of the problem is, beyond any doubt, the fact that the trade unions do not have legal personality in Belgium. As a result, the trade unions in Belgium cannot be held legally liable. The trade unions are very sensitive about it and tend to become almost aggressive as soon as any person even thinks of raising the issue.

In an attempt to keep things more or less in hand, the employers’ associations and the trade unions entered into a gentlemen’s agreement several years ago relating to the way the right to strike is exercised, on the one hand, and the way the employers (re)act in the case of a strike, on the other hand.

By way of example, the trade unions promised to make best efforts in order to see to it that the public order would not be disturbed (public road blocking) and that the strikers would not prevent non striking fellow workers from working.

The employers’ associations, on their part, undertook not to encourage their member employers to file unilateral requests before the tribunal in order to try to obtain an injunction against the strike action.

Despite this gentlemen’s agreement, in the course of the last couple of years (national) (strike) actions, organised by the trade unions, got more and more out of hand. As an outstanding example, reference is made to the blocking of the highway at the end of last year with quite serious consequences.

The industrial relations partners reopened negotiations in an attempt to update the gentlemen’s agreement. Unfortunately, they failed.

Reciprocal blames were vehemently uttered in the media: the unions claimed that the employers’ association were putting forward demands, which would result in far reaching infringements of their union rights; the employers’ association on their part claimed that the unions’ position was totally unreasonable because they refused to outlaw illegal actions.

But, should it all be that difficult?

In our opinion, it should not be provided if one accepts that a clear distinction is to be made between the right to strike and the way that right is exercised.

The right to strike is the right of the workers to collectively interrupt temporarily the performance of the work in accordance with the employment contract in view of forcing the employer (or a group of employers) to make concessions with respect to employment matters and the right not to be sanctioned by the employer because of such work interruption.

That right does not include any means of violence whatsoever. However, avoidance of violence does not require a gentlemen’s agreement. 

As an example, public road blocking, requires a mayor, who has the political courage to give orders, as the head of police in his town, to his police force – as may be required with the support of the federal police – to undo the road blocking with all means, as may be reasonably required.

The right to strike does not include either the right to prevent fellow workers from working, if they prefer to do so.

Admittedly, this is a more delicate issue: posting is generally accepted as an admissible part of exercising the right to strike; however the line between posting and physically preventing fellow workers from entering the work place is a very thin line. Moreover, picket lines are mostly installed on the employer’s private property; this certainly makes it hard, if not impossible for public authorities to intervene.

The idea, which was discussed in public debates, to have the trade unions appointed a contact person in the case of a strike, whom the employer can address to discuss and resolve such issues, seems to be a good idea.

One might put forward that the appointment of such a contact person does not seem to be necessary because the external union official is clearly the indicated contact person for the employer.

While this is correct, a provision, formally requiring the trade unions to appoint such a contact person, and the formal appointment of the contact person accordingly, gives undoubtedly more weight and impact to such a contact person.

In addition, it might be appropriate to appoint a person, other than the external union official who is used to deal with the employer, as the contact person, because, in the case of a strike, the relationship between the employer and the relevant external union official is likely to have become somewhat troublesome.

In any event, the appointment of a contact person is not the solution in all cases. How could a contact person usefully be appointed in the case of a national strike?

Moreover, making this contact person legally liable towards the employer with respect to possible damages resulting from illegal ways of exercising the right to strike, as suggested by some politicians, is – beyond any doubt – a bridge too far within the Belgian industrial relations environment.

Such unrealistic suggestions do not further solutions, which are beneficial to the Belgian investment climate. Quite to the contrary, they unnecessarily hinder such solutions.

Political realism is as important as political courage.