The 2020 social elections: should we already be doing something now?

The 2020 social elections: should we already be doing something now?
February 6, 2019

In 2020, most probably between 11 and 24 May, all employers employing at least 50 workers (for the Health & Safety Committee) or on average 100 workers (for the Works Council) must organise new social elections to elect the employee representatives sitting on these consultative bodies.

This period still seems far away. However, it is advisable to start making strategic choices now, especially if your company is close to the threshold of 50 or 100 employees.

Indeed, the number of workers for this threshold is calculated over a reference period that, up until now, corresponded to the calendar year preceding the year of the elections. However, for the 2020 elections, the National Labour Council has published advice in which it agrees with the Employment Ministry’s proposal to advance this reference period by one quarter. This would imply that the recruitment you have made since 1 October 2018 and will make until 30 September 2019 will directly impact upon the calculation of this threshold.

You will find a short overview of this and a few other proposed amendments, included in the National Labour Council’s advice below. It should be noted that these proposed amendments still need to go through the legislative process and are therefore subject to change.

1. Date of the social elections

The National Labour Council has proposed that the social elections should be held between Monday 11 and Sunday 24 May 2020.

2. Earlier reference period for the calculation of the employment threshold

On the basis of the current law on social elections, the reference period for calculating the average number of employees for evaluating whether or not the threshold of 50 or 100 employees is met is the calendar year preceding the year of the elections.

In the past, this reference period has resulted in practical difficulties as the pre-election process must start 150 days prior to the actual election date. This situation means that the employer must already start with the pre-election procedure at the beginning of December, whilst it will only know for sure whether or not the threshold of 50 or 100 employees has been met at the end of December (i.e. the end of the reference period).

To avoid situations in which the employer starts the pre-election procedure at the beginning of December and then finds out at the end of December that the threshold was actually not met (or vice versa), the Employment Ministry has proposed advancing the reference period by one quarter for the 2020 elections; therefore the reference period would start on 1 October 2018 and end on 30 September 2019.

This implies that the reference period is already running and that any recruitment or dismissals that you are carrying through now can affect the attaining (or not) of the threshold and therefore the obligation (or not) to organise social elections.

In addition, given the proposed amendments, the National Labour Council has also suggested advancing the reference period for calculating the number of temporary agency workers to the 2nd quarter of 2019 (instead of the 4th quarter). Therefore, the number of temporary agency workers engaged during this second quarter of 2019 may ‘tip the scales’ and should now already be reflected upon in your HR recruitment policy.

3. The taking into account of a prior period as a temporary agency worker

The current text of the Law of 4 December 2007 on social elections provides that all employees with a length of service of at least 3 months can participate in the social elections. Any period of time as a temporary agency worker is not taken into account for the calculation of this length of service.

The National Labour Council has now proposed amending the law so that any period of employment as a temporary agency worker immediately prior to the entering into of an employment contract must be taken into account.

4. Digitalisation

The Employment Ministry and the National Labour Council would like to further facilitate the election procedure by means of electronic communications.

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