Trade union action on 29 March: what you need to know as an employer.
A national action day has been announced for Monday, 29 March in the context of the difficult inter-professional negotiations. During a strike, the employment of temporary agency workers by temporary work agencies is in principle prohibited. But when is there a strike? Is it an absolute prohibition? And what about the remuneration of employees and temporary agency workers?
Employment of temporary agency workers: how far does the prohibition reach?
CLA no. 108 determines that a temporary work agency may not employ temporary agency workers or keep them employed at a user during a strike (or lock-out). This prohibition seems broadly formulated; however, the purpose is clear: it is necessary to prevent a strike action from being broken by replacing strikers with temporary agency workers. In that case, a strike would miss its purpose and the right to strike would be undermined in practice.
According to the Federal Public Service Employment, Labour and Social Dialogue, the prohibition must be examined per category of personnel and per establishment. Therefore, according to this interpretation there is no impediment to employing temporary agency workers for white-collar jobs if only blue-collar workers are striking. If a company has several sites, the employment of temporary agency workers is only prohibited in those sites where there is a strike.
In recent case law, the prohibition is interpreted more restrictively, taking into account its purpose. The Antwerp Court of Appeal, for example, had to rule on the situation whereby temporary agency workers who were usually employed within the company worked as normal during the day of national action. The inspection services established a breach of the employment prohibition based on a list of temporary agency workers who had worked on that day. The Court was of the opinion that it had not been proven that there was a strike and, besides that, that the inspectorates (and the labour auditorate) had not investigated to which professional categories the strikers and the temporary agency workers belonged and in which departments they were employed. Both the temporary work agency and the user were acquitted.
The criminal court in Mechelen also handed down an interesting judgment on the subject. The question was whether a temporary work agency had violated the prohibition of CLA no. 108 by employing temporary agency workers at two users during a national strike day. The court ruled that there was a strike, but that for the prohibition a distinction must be made depending on whether they are existing or new temporary agency workers engaged after the strike notification. Applying the prohibition on temporary agency workers who had been employed at the user for some time before the start of the strike is – according to the court – a violation of the equality principle. As there was no evidence that the temporary agency workers were used to replace strikers, the court dismissed the case.
So, recent case law attaches importance to the fact that it must be shown that the temporary agency workers involved are actually employed to replace strikers on the day of the strike. Based on this case law, it can therefore be argued that a strike does not simply mean that no temporary agency workers may work at all on that day. Such an interpretation would lead to an infringement of the temporary agency workers’ right to work. However, in certain regions the inspection services continue to take strict action if they are asked by trade unions to carry out an inspection in specific companies.
The Social Penal Code provides a level 2 sanction for each breach of the prohibition (EUR 400 – EUR 4,000 for a criminal fine or EUR 200 – EUR 2,000 for an administrative fine). These amounts must be multiplied for each temporary agency worker for whom an infringement has been established. According to the abovementioned interpretations, an infringement should be assessed on a case-by-case basis.
No similar prohibition exists for any self-employed contractors working in your company on 29 March. They can continue to offer their services.
No right to remuneration
According to the basic principle, a wage is paid in return for work performed in execution of the employment agreement. However, the Employment Contracts Act determines that the employee who does not arrive at the workplace or who arrives late or who cannot begin or continue work is under certain conditions entitled to their wage. Nevertheless, the act explicitly determines that no wage is due if it is impossible to work because of a strike. This is the case both for the employee/temporary agency worker who strikes and for the employee/temporary agency worker who is willing to work, but is not able to do so because of the strike.
“Strike”?
Finally, the question arises whether an inter-professional demonstration, such as the one on 29 March actually constitutes a strike. The abovementioned judgment of the Court of Appeal already confirmed that the general prohibition is only applicable in case of a strike and therefore does not automatically apply to every action or demonstration. However, CLA no. 108 contains no definition of the concept of a strike. In order to make an assessment, some jurisprudence is guided by the number of employees involved and the impact of the strike on the functioning of the undertaking.
It is clear that in this matter legal certainty is lacking. Although there are more flexible interpretations of the prohibition, this does not necessarily mean that the competent inspection services will follow those interpretations during an inspection.
Action point
Although the prohibition is broadly formulated, according to some jurisprudence it only applies if the temporary agency workers are actually employed to replace the strikers and therefore break the strike. However, the inspection services and the Federal Public Service Employment, Labour and Social Dialogue do not seem to follow this point of view.