Trade union action on 24 September: what you need to know as an employer.

To campaign against the Wage Norm Act within the context of the inter-professional agreement, a national action day will take place on Friday, 24 September, as announced. The employment of temporary agency workers is in principle prohibited during a strike. But when exactly is there a strike? Does this mean that no temporary agency worker may be employed on that day? And what about the remuneration of employees and temporary agency workers?

Employment of temporary agency workers: how far does the prohibition extend?

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 behind it is clear: it should prevent a strike action from being “broken” by replacing striking employees with temporary agency workers. Otherwise, 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. Thus, 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 at those sites where there is a strike.

Recent case law interprets the prohibition 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 were working on the day of national action. The inspection services established a breach of the employment prohibition merely by examining 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 striking employees 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 this matter. 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 the prohibition required a distinction depending on whether it concerned existing or new temporary agency workers engaged after the strike was called. Applying the prohibition on temporary agency workers who were employed at the user for some time before the start of the strike is – according to the court – a violation of the equality principle. The temporary employment agency was acquitted as there was no evidence that the temporary agency workers were used to replace striking employees.

So, in assessing a breach of the prohibition, recent case law attaches importance to the fact that it must be shown that the temporary agency workers involved are actually employed to replace striking employees 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 in a company in which there is a strike. 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 400–4,000 for a criminal fine or EUR 200–2,000 for an administrative fine). These amounts are multiplied by the number of temporary agency workers 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 24 September. 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. However, according to the act, no wage is due if the impossibility to work is caused by 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 a trade union action, such as the one on 24 September actually constitutes a strike. The abovementioned judgment of the Court of Appeal 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 does not define 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 more flexible interpretations of the prohibition exist, this does not necessarily mean that the competent inspection services will follow those views during an inspection.

Action point

Although the prohibition on the employment of temporary agency workers is broadly formulated, according to some jurisprudence it only applies if the temporary agency workers are actually employed to replace the strikers and thus with the aim of breaking 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 for now.v