877 Decisions taken by the Minister in 2002 69

During the year 2002, 922 (against 795 in 2001) hierarchical recourse have been trained to the Minister of Social Affairs, labour and solidarity against the decisions taken by the labour inspectors dismissal and transfer of protected employees and establishment of staff representative institutions.

More and more used, hierarchical appeal to the Minister of Social Affairs is also more effective. 877 Decisions taken by the Minister in 2002, 69.55 confirmed the assessment by the labour inspector, 30,45 have reversed it. Never before the percentage of confirmation of the decisions taken by the labour inspectors had been as low (it had been 80,53 in 1998 and 73,59 in 1999).

New distribution of roles

Faced with this double increase of hierarchical appeal, on the one hand, cancellations of the decisions of the labour inspector, on the other hand, the Ministry of employment comes to edit in a circular of 3 October 2003, published in the "official Bulletin of labour, employment and vocational training" February 29, 2004 (1), some of the provisions governing until then the distribution of roles between services devolved (departmental Directorate and regional Directorate of labour) and the administration.

Now, the statement of claims will in two and a half months at the maximum at the departmental or regional level, but still under the responsibility of the Regional Director of labour. Then, four to six weeks at the central level will be necessary to enable the services of the Department to study the dossier and the Minister or his delegate (usually the Director of labour relations) to decide.

In addition to the knowledge of circuit training and decision, include circular of October 3, 2003 a dual commitment of the administration. First, the "mandatory", General and absolute duty to rule on the hierarchical action within four months of its filing. Then, the respect of the use that the party who wishes must be received, the other being contacted to, in the concern for the respect of inter partes proceedings, that it is also proposed, if it so wishes, to be received.

Evolution of the context

Use unfortunately too often forgotten that will have meaning, now, that if hearings are involved in the ten weeks following the filing of the action, i.e. before the Regional Directorate of labour transmit the record Department.

The reform was all the more urgent that services must also deal with the evolution of the legal and judicial environment. Indeed, Ternon, October 26, 2001, under the terms of which the Assembly of the Council of State litigation decided that "subject to legislation or regulations contrary and except for the case where is satisfied a request by the beneficiary, the administration cannot withdraw a creative right decision, if it is illegal, that within four months after decision making" ismatter, could not be more delicate. Until today, indeed, the jurisprudence decided that only the authority to dismiss an employee protected creates rights for the employer. But following the Ternon, the Council of State decision seemed to redefine the contours of this category of the "decisions creative rights" also wave is in vogue in recent texts which determine the regime applicable to unilateral acts of the administration.