The 2020 social elections: should we already be doing something now?
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.
Our Experts in
Recommended articles
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.
Read on
Abolition of the reorientation indemnity’s (partial) reimbursement: a (significant) additional cost for employers conducting a collective lay-off
Employees terminated in the frame of a collective lay-off may participate in a redeployment cell, which helps them to find new employment. Any participating employee is entitled to a monthly reorientation indemnity equal to his/her salary inclusive benefits during a period of 3 or 6 months. The employer pays the reorientation indemnity. Until very recently, an employer could obtain a reimbursement from the unemployment office (“RVA”/“Onem”) for the amount of the reorientation indemnity exceeding the statutory indemnity in lieu of notice.
Read on
Draft Belgian Whistleblowing Act now adopted in Parliament!
The draft Belgian Act on whistleblowing for the private sector, which transposes EU Directive 2019/1937 (‘the Whistleblowing Directive’) into national legislation, has finally been adopted in Parliament. The Act still has to be published in the Belgian State Gazette and will enter into force 2 months after its publication.
Read on