Social elections 2020: What’s new?
Between 11 and 24 May 2020, new social elections must be held for the works council and the committee for prevention and protection at work.
The law of 4 December 2007 on social elections has been amended by the law of 4 April 2019, which entered into force on 30 April 2019. These amendments have an impact on the reference period and the election procedure as such (with extra attention for temporary agency workers).
1. Reference period
A committee for prevention and protection at work must be established if the company employed an average of at least 50 employees; a works council must be established if the company employed an average of at least 100 employees (or, exceptionally, 50 employees in case the number of employees has been decreased to < 100 since the previous social elections of 2016).
Until the previous social elections, the average of employees was calculated on the basis of the number of employees working within the company during four quarters, starting six quarters before the quarter of the social elections, the so-called “reference period”.
The following amendments were adopted concerning the reference period for the next social elections:
- The reference period has been advanced by one quarter, i.e. starting on 1 October 2018 until 30 September 2019. The purpose of this amendment is to avoid that an employer must start the election procedure in a period during which it is still unclear whether the statutory thresholds are met or not. Employers will now know the average number of employees in their company when the election procedure begins on X-60.
- Temporary agency workers should also be taken into account in the calculation of the average number of employees (excluding those who replace a permanent employee), but only on the basis of the fourth quarter preceding the quarter of the social elections. According to the (new) timeline, it means that the decisive quarter falls during the period between 1 April 2019 and 30 June 2019 and no longer during the second quarter preceding the quarter of the social elections, as was previously the case.
In order to take into account the temporary agency workers used during this quarter in the calculation of the average number of employees, the employer must keep an annex to the general personnel register (with mandatory provisions). If an employer has already reached the threshold of 100 employees, it can be exempted from this obligation. The works council must then meet to determine, unanimously, that the threshold of 100 employees has been exceeded. This decision must be taken before 30 May 2019.
2. Election procedure
The election procedure lasts 150 days and runs from December 2019 to May 2020. Please find here the calendar of the election procedure.
- The election procedure starts on Day X-60 (60 days before the publication of the notice of the elections), i.e. between 13 and 26 December 2019. On Day X-60, a first communication must be done including the number of employees per category at the end of the reference period as well as the necessary information to determine the technical operating unit (“unité technique d’exploitation”/“technische bedrijfseenheid”).
- On Day X, the date and the practical modalities for the day of the elections must be communicated, together with the preliminary electoral list.
- On Day Y (i.e. 90 days after Day X), the employees vote in the social elections. For 2020, this date must be scheduled between 11 and 24 May 2020.
The new law provides a number of amendments related to the election procedure, including, amongst others:
- Electronic voting should still be approved by the works council, committee for prevention and protection at work, or in the absence thereof, the trade union delegation. However, electronic voting should no longer be approved upon on a unanimous basis.
The works council, the committee for prevention and protection at work or, in absence of those, the employer in consultation with the trade union delegation can decide that electors will be able to vote electronically from their usual work station.
Electronic communications and the electronic application of the FOD can be used during the election procedure, provided that every employee has access to those documents during working time.
- Temporary agency workers who have been working for:
(i) at least three months on an uninterrupted basis or 65 days on an interrupted basis with the user (between 1 August 2018 and Day X); and
(ii) at least 26 working days between Day X and X+77;
will be entitled to vote; they cannot be put forward as a candidate though.
- With the unanimous agreement of the works council or committee for prevention and protection at work, the obligation to send a registered letter to invite an absent employee to the social elections may be waived. The unanimous agreement determines the alternative method of invitation and its modalities.
- Within six months following the social elections, the employer must present to the works council (or trade union delegation) an overview of the ratio between female and male candidates nominated and the ratio between female and male elected representatives.
In practice? Many legal and administrative tasks precede the election procedure, including monitoring the employment of temporary agency workers. We are obviously happy to assist you along this process – from general training offerings, tailor-made workshops for management to legal proceedings in case of disputes. We can also share our experience in relation to these collective bodies, for example in relation to the rights and obligations of the employee representatives.