The right to collective action in Belgium

Abstract

The right to collective action in Belgium1 Jan Buelens (bio) Although the right to freedom of assembly and association has historically been labelled as rather inviolable in Belgium, the coming into office of a right-wing government in 2014 heralded a shift to the detriment of this right. Since then, restrictions on collective action have been piling up, by law and by case-law of the courts. At this moment, a ban on demonstrations is also being debated. Many social and democratic achievements of the labour movement are under increasing pressure. This contribution seeks to provide a brief overview of the contemporary attacks on the right to collective action in Belgium, after discussing how this right has emerged and evolved in Belgium. Historical context To understand the legal framework of the right to collective action in Belgium, we need to start with the Belgian revolution of 1830 and the Constitution of 1831. As a result of uprisings, in which the working class played an important but neglected role, the bourgeoisie took control of power and broke with the "Ancien Régime". Civil and political rights were enshrined in the Constitution, among which the freedom of association. However, the bourgeoisie never wanted to provide for the working class, but solely for themselves,. The promised freedom was thus in fact for the factory owners. In order to consolidate its own power, the bourgeoisie made use of the most powerful legal instrument at his disposal – the penal code. In flagrant contradiction with the Constitution, this Napoleonic Code provided for a prohibition of association, particularly in case of demanding higher wages. It was punishable as well to call for lower wages, but the bourgeoisie had three ways to ensure that factory owners were never sanctioned: the provision had a slightly different wording, the judiciary was at their side, and, of course, employers would collude more covertly than the working class. The latter would be heavily sanctioned for taking the streets, with sentences ranging from a fine to imprisonment. Bullet shots were used to curb demonstrations. The nascent labour movement understood that it had to work for the abolition of this penal provision, as it touched its very existence. Hence, from the beginning, its action was an amalgamation of social and democratic demands: the 8-hour working day, universal suffrage, and the abolition of the ban on association. In 1867, the ban was abolished, but another penal provision saw the light of day. The infamous Article 310 prohibited all assembly near factories, thus making strikes in any form impossible. It was not until 90 years after the creation of Belgium, in 1921, that this article was abolished. The 1921 tipping point came amidst a lot of pressure. The general strikes in the years before the war had left their marks in the collective memory. After the First World War, Europe experienced revolutionary uprisings. In light thereof, universal (male) suffrage and the 8-hour working day were introduced. Another law of the same day recognised the freedom of association and trade union freedom. From then on, striking was no longer a criminal offense. But even though 24 May 1921 was a milestone, strikers remained at risk of seeing their employment contract being terminated and hence being fired. Moreover, the police would not shy away from using heavy-handed methods to crack down on pickets, even after the trade union freedom was enshrined as a fundamental right in international treaties after World War II. This would not change until 1981. After the dismissal of a union official in an Antwerp petroleum company, a weeks-long solidarity strike broke out in the entire sector. The Court of Cassation subsequently ruled: dismissal for strike reasons is not allowed. It was the last great achievement of the labour movement with respect to collective action. Contemporary attacks on the right to collective action After World War II, the workers' movement was quite strong and managed to achieve great social progress. This is when individual and collective labour law were conceived. However, the balance of power shifted toward capital after the economic crisis in the 1970s and with the rise of neoliberalism. The consequences of this shift did not occur right...