Claeys & Engels | View firm profile
When actions are announced, what about the right to remuneration for the employees willing to work who do not get to work (on time)? Furthermore, 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?
Right to remuneration for the employees willing to work?
Since the actions were announced beforehand and given the knowledge that public transport will also be disrupted, it can certainly be argued that an employee willing to work who does not arrive at work or does not arrive on time due to the actions of public transport staff is not entitled to remuneration for the hours not performed. The employee knew (well before leaving for work) that public transport would be disrupted. He could therefore have taken the required measures to still arrive at work on time.
However, it is advisable to inform your employees in advance that no remuneration will be paid for hours not performed to those employees who – due to the disruption of public transport – do not arrive at work or do not arrive on time. It is best – if possible for the positions concerned – to point them to alternatives (e.g. remote work, taking paid holidays).
Employment of temporary agency workers: how far does the prohibition extend?
CBA 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 of Mechelen also handed down an interesting judgment on this matter. The question was whether a temporary work agency had violated the prohibition of CBA 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 union representatives 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.
There is no similar prohibition for self-employed contractors, contractors… working in your company, so they can continue to offer their services.
“Strike”?
Finally, the question arises whether a trade union action actually constitutes a strike. The abovementioned judgment of the Court of Appeal confirms that the general prohibition is only applicable in case of a strike and therefore does not automatically apply to every action or demonstration. However, CBA no. 108 does not define the concept of a strike. To make this 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.
Key message
Right to remuneration for employees willing to work: If you do not wish to pay remuneration for hours not performed to employees willing to work who – due to the announced actions – do not arrive at work or do not arrive on time, it is advisable that you inform your employees of this in advance and, if possible, point out to them the possible alternatives.
Temporary agency workers: 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. Some caution as an employer is therefore advised.
Newsflash, 6 March 2023