The reformed recognition procedure for dock workers… the end of a legal battle?

A new Royal Decree of 21 December 2022 substantially changes the recognition procedure for dock workers. This Royal Decree was issued in the aftermath of a long-standing legal battle initiated by two major players in the sector that challenged the very specific Belgian legislation on dock workers. Although the principle that dock work can only be carried out by recognised dock workers fully remains in place, the application process to become a recognised dock worker should now become (more) objective, non-discriminatory and transparent.

1. What is this all about?

A key element of the Belgian legislation organising dock work is that dock work in port areas can only be carried out by recognised dockers.

An administrative commission, jointly composed of employers’ organisations and workers’ organisations, was established in each port area. This administrative commission was exclusively responsible for the recognition procedure and decided about each recognition request. To become recognised, one should meet various criteria such as successfully passing a psychotechnical-test, …

The administrative commission also decided as to whether or not a recognised dock worker was included “in the pool”. When taking a decision about an inclusion in the pool, the administrative commission was assumed to take into account the “need for manpower” in the port area. The decision whether to include or not a dock worker in the pool was not without consequences: when a dock worker was not included in the pool, then the duration of the recognition was limited to the duration of the employment contract the dock worker entered into with an employer. Dock workers included in the pool were recognised for a definite or indefinite period.  

The old recognition procedure was criticised for various reasons, including:

• There was no certainty or guarantee that the individual members of the administrative commission had the required knowledge to assess whether a candidate dock worker meets the applicable recognition criteria;
• The impartiality of the members of the administrative commission was questioned, especially as they represented already recognised dock workers. Newly recognised dock workers could potentially compete with already recognised dock workers for the available work. This could result in a certain reluctance to recognise new dock workers;
• It was not clear at all how one should assess and evaluate the “need for manpower”;
• The administrative commission was not bound by a legal time period within which it had to take a decision about a recognition request;
• If a recognition request was refused, then a docker could only initiate judicial proceedings as no administrative appeal was possible.

2. Recap: what happened previously

In a long awaited court ruling, the ECJ confirmed on 11 February 2021 [1] that the Belgian legislation on dock work, which obliges companies to have only recognised dockers carry out dock work in ports, does not necessarily constitute a violation of the free movement of workers, the freedom of establishment and the freedom to provide services.

However, the ECJ has not approved some important accompanying measures and restrictions that the Belgian dock work legislation imposes, such as the modalities of the recognition procedure. According to the ECJ, as the requirement of recognising dockers is intended to ensure safety in port areas and to prevent workplace accidents, the recognition of dockers should be based on objective, non-discriminatory criteria known in advance. Furthermore, establishing a limited quota for recognised dock workers was considered disproportionate to the attainment of the safety objective.

The main principles of the Belgian recognition procedure at stake were set out by Royal Decree of 5 July 2004, [2] as amended, amongst other things, by a Royal Decree of 10 July 2016. [3]

Taking into account the ECJ’s considerations, the Council of State [4] annulled on 26 November 2022 the Royal Decree of 10 July 2016.

A new Royal Decree of 21 December 2022 now ‘fills the gap’.

3. Key changes to the recognition procedure

The adjusted recognition procedure aims to guarantee the safety in each port area. This is only possible provided there is a sufficient number of recognised dock workers (consequently, this reasoning also implies that the safety cannot be guaranteed if there is a lack of recognised dock workers). When deciding as to whether a recognised dock worker will be included in the pool, the need for manpower will still be taken into consideration, which is based on a more objective, non-discriminatory and transparent recognition procedure:

• Going forward the recognition decision is taken by officers of the Federal Ministry of Employment, Labour and Social Dialogue. 

The role of the administrative commission, jointly composed of employers’ organisations and workers’ organisations, therefore changes and evolves towards a mere advisory role.

• The new Royal Decree clearly defines how the need for manpower will be assessed and measured. Going forward, this will be done based on objective criteria (such as economic forecasts regarding port traffic, information provided by the regional services for employment mediation, etc.)
• There are some new procedural guarantees, such as the rule that, following receipt of a recognition application, the Federal Ministry of Employment, Labour and Social Dialogue must take a decision within 3 months (but in the absence of a timely decision, the decision is considered to be negative).
• When a recognised dock worker is not included in the pool, then his recognition will no longer automatically expire at the same time the employment contract comes to an end. The recognition will only end upon expiry of a 13 consecutive week period without any dock work being performed.

For more information on this topic or on the employment aspects related to logistic operations in port areas, please do not hesitate to contact Emma Van Caenegem.

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[1] For more information please read our blog on this topic: https://www.altius.com/en/news/the-belgian-requirement-to-rely-on-recognized-dockers-to-perform-dock-work-passes-the-ecj-test-the-recognition-procedure-of-dockers-does-not/.

[2] Royal Decree of 4 July 2004 regarding the recognition of dock workers in port areas falling under the scope of application of the Act of 8 June 1973 regarding dock work, as amended. 

[3] Royal Decree of 10 July 2016 amending the royal decree of 5 July 2004 regarding the recognition of dock workers in port areas falling under the scope of application of the Act of 8 June 1973 regarding dock work.

[4] Raad van State / Conseil d’Etat.

Written by

• Emma Van Caenegem

  Counsel