The legal systems of the Member States

Directorate-General For Employment Social Affairs And Inclusion

Description

A comparative perspective: National reports
Working conditions
Social policy
Fundamental rights

Sujets

• Labour law
• Industrial relations
• Occupational safety and health
• Member state of the European Union
• Sociologie, société et politique

Informations

• Publié par: DIRECTORATE-GENERAL-FOR-EMPLOYMENT_SOCIAL-AFFAIRS-AND-INCLUSION
• Nombre de lectures: 12
• Langue: English
• Poids de l'ouvrage: 9 Mo

Extrait

The regulation of working conditions
in the Member States of the European Union
Volume 2
mm?
*
^
Employment & social affairs
European Commission The regulation of working conditions
in the Member States
of the European Union
Volume 2
The legal systems of the Member States;
a comparative perspective
National reports
Employment & social affairs
Industrial relations and industrial change
European Commission
Directorate-General for Employment, Industrial Relations
and Social Affairs
Directorate V/D.2
Manuscript completed in 1998 The contents of this publication do not necessarily reflect the opinion or position of the European
Commission, Directorate-General for Employment, Industrial Relations and Social Affairs.
A great deal of additional information on the European Union is available on the Internet.
It can be accessed through the Europa server (http://europa.eu.int).
Cataloguing data can be found at the end of this publication.
Luxembourg: Office for Official Publications of the European Communities, 1998
ISBN 92-828-3396-8
©European Communities, 1998
Reproduction is authorised provided the source is acknowledged.
Printed in Belgium TABLE OF CONTENTS
BELGIUM 5
M. Stroobant
DENMARK 22
R. Nielsen
GERMANY 43
M. Weiss
GREECE 55
Y. Kravaritou
SPAIN 7
F. Duran López, revised by J. Cruz Villalón
FRANCE 88
A. Lyon-Caen
IRELAND 106
F. Von Prondzynski
ITALY 112
T. Treu, revised by G. Primo Cella
LUXEMBOURG 129
R. Schintgen, revised by C. Bollendorph
THE NETHERLANDS 145
A. Jacobs
AUSTRIA 171
U. Runggaldier
PORTUGAL7
M. Pinto, revised by J. Silva Leite
FINLAND 204
N. Bruun
SWEDEN 216
B. Nyström
UNITED KINGDOM 235
B. Hepple NOTES ON CONTRIBUTORS
C. BOLLENDORPH
N. BRUUN
Professor of Commercial Law, Higher Swedish Commercial College, Helsinki, Secondment to the Institute of Labour,
Stockholm
J. CRUZ VILLALÓN
Professor at the University of Cádiz
F. DURAN LÓPEZ
Professor at the University of Cordoba, Chairman of the National Commission on Collective Négociations
Β. HEPPLE
Professor of Law and Master of Clare College, University of Cambridge
A. JACOBS
Professor of Labour Law and Social Security at the Catholic University of Brabant, Tilburg
Y. KRAVARITOU
Professor of Law at the European University in Florence
A. LYON CAEN
Professor of Law at the University of Paris X
R. NIELSEN
Professor at the School of Economic and Business Administration, Law Department, Copenhagen
B. NYSTRÖM
Associate Professor of Labour Law, Department of Business Law, University of Lund, Sweden, Member of the Governing Body
of the National Swedish Mediation Service
M. PINTO
Professor of Law, Lisbon
G. PRIMO CELLA
Professor of Social Economics at the University of Brescia, President of Regional Foundation Pietro Seveso
U. RUNGGALDIER
Professor of Labour Law and Social Security at the Vienna University of Economics and Business Administration
R. SCHINTGEN
Doctor of Law, formerly principal at the Ministry of Labour, currently Judge at the Court of First Instance of the European
Communities
J. SILVA LEITE
Assistant Professor at the University of Coimbra
M. STROOBANT
Professor at VUB, Brussels, Director of the Center for Labour Law
T. TREU
Professor at the Catholic University of Milan, President of the Italian Labour Law Association, Visiting Professor at numerous
universities in other countries
F. VON PRONDZYNSKI
Dean of Law School, University of Hull, United Kingdom
M. WEISS
Professor at the University of Frankfurt, Visiting Professor at numerous universities in other countries
Information given in this volume on legislation was updated in 1997. BELGIUM
BELGIUM
M. Stroobant
1. Background
CHAPTER I: UNION FREEDOM 7
SECTION 1:M TO ASSOCIATE AND UNION FREEDOM
2. Legislation
3. The principle
4. Definition
5. Contract of association
SECTION 2: THE INGREDIENTS OF UNION FREEDOM 8
6. Foreword
7. Positive and negative union freedom
8. The nationality requirement
9. The repercussions of membership
10. Statutory powers: internal and external competence 9
11. Disciplinary powers
SECTION 3: PROTECTION OF UNION FREEDOM
12. Protection
SECTION 4: THE LIMITS ON UNION FREEDOM 10
13. Preface 1
14. Indirect restrictions
15.ts - vital needs
16. Direct restrictions - general legal principles
17. Directs - clauses on union security - the concept
18. Union security clauses - conditional legality
19. Restrictions deriving from external law 1
20. Conclusion
CHAPTER II: THE LEGAL POSITION OF TRADE UNIONS
21. Preface
22. Partially regulated organisations
23. Functional legal entity
24. Representative organisations 12
25. Union freedom and the public utility services3
CHAPTER III: THE TRADE UNION MOVEMENT IN BELGIUM
26. Introduction
27. Features
28. Internal structures: FGTB, CSC, review4
29. The internal structure of the CGSLB5
30. Régionalisation
31. Union personnel
32. International and European links
33. Legal structure of the unions
34. Régionalisation 1
CHAPTER IV: THE STRUCTURE OF THE PUBLIC AUTHORITIES 16
35. Introduction
36. Legal nature of structures
37. The Ministry of Labour and Employment - The regulatory function
38. Supervisory and policing duties of the authorities - The settlement of disputes
39. Encouragement of collective bargaining
40. The settlement of disputes
CHAPTER V: LEGAL INSTRUMENTS
SECTION: REVIEW OF THE SOURCES OF LAW
41. List6
42. Legislation7
43. International agreements
44. Custom 1
45. Natural justice6 THE REGULATION OF WORKING CONDWONS IN THE MEMBER STATES OF THE EUROPEAN UNION - VOLUME 2
SECTION 2: CONFLICTS BETWEEN SOURCES OF LAW 17
46. Hierarchy of sources of law
47. Current legislation 1
48. Hierarchical order8
49. The mandatory provisions of law
50. Collective agreements
51.es (continuation)
52. Works rules
53. Employer's unilateral decision-making powers9
54. General principles of law 1
55. Binding force of the hierarchy
56. Sources of law not mentioned in Article 51
57. Fundamental socio-economic rights 1
CHAPTER VI: INDUSTRIAL DISPUTES
58. Introduction
59. Procedures for the peaceful settlement of disputes 20
60. Dispute situations: strikes, factory occupations and lock-outs
61. Limitations of the right to strike
CHAPTER VII: THE PROSPECTS UNDER COMMUNITY LAW
62. Introduction 2
63. From the point of view of the actors
64. From the point of view of legal instruments1
65. From the point of view of collective disputesBELGIUM
1. Background be forced to join or not to join an association. In other
words, both negative and positive union freedom are
The actors participating in the production process are
guaranteed by law.
roughly three: employers, workers and the State.
Although the principle of union freedom is formulated in
A brief outline of their respective legal position and their
absolute terms, without a single restriction, such restrictions
role is set out below.
obviously exist.
The first point to make is that these actors perform not only
4. Definition singly, as individuals, but also as part of a group. Another
is that there have been changes in the course of time, both in
There is no definition of the concept "union organisation ",
terms of their legal position and in terms of their function in
"occupational union"or "union'in Belgian law. In general,
the labour process.
these terms are used to designate workers' organisations, but
the word union refers likewise to organisations representing With regard to the group aspect, we need to study the rules
the employers, the professional classes and farmers. which govern their actions as such and identify their global
role.
Workers' organisations currently play an extremely broad-
We shall look in turn at: ranging role in Belgian social affairs. They defend the
• union freedom; interests of their members at corporate level and in the
• workers' organisations; higher echelons of society.
• employers';
They fulfil a similar function vis-à-vis the political authori­
• the public authorities.
ties.
Hence the need to adopt a broad definition of the term CHAPTER I: UNION FREEDOM
"union organisation " m Belgium, along the lines proposed
SECTION 1 : FREEDOM TO ASSOCIATE
by J.M. Verdier. "A professional organisation is a group
AND UNIONM
made up of natural and legal persons with a professional
activity which, with a view to defending their interests, 2. Legislation
improving their existence and representing profession
Freedom to associate is enshrined in the Belgian Constitu­
through collective action, question or participate in the
tion. Union freedom is regarded as an aspect of this right,
organisation of their profession, and in framing
although it is not actually spelt out as such. The basic legal
a