Yes. If a Works Council was elected during the previous elections but the company’s headcount has dropped below 100 employees (but still remains above 50), the company will have a Works Council and a CPPW. However, elections for the Works Council do not have to be organised, as the mandates for the Works Council will be exercised by those elected to the CPPW.
High level executives are persons in charge of the daily management of the company and who are authorised to represent and commit the employer (Level 1) and also the employees who are immediately subordinate to these persons and who also carry out daily management tasks (e.g. recruiting and dismissing personnel, etc.) (Level 2).
High level executives of LEVEL 1 are not necessarily linked to the company by an employment contract, i.e. they can also be self-employed.
High level executives of LEVEL 2 must have an employment contract with the company.
Yes. Strangely enough, nothing prevents the trade unions from filing a complaint against their own list. The trade union that submitted a list of candidates can lodge a complaint against its own list if material errors were made when submitting the list of candidates. If a trade union mistakenly submitted a candidacy for a category for which there were no mandates to be vacated, then it can correct this material mistake by filing a complaint against the list and can still submit the candidacy in question for the correct mandate to be vacated.
Yes. In practice, there are always people who do not have the opportunity to vote, for example because they are ill for a period of time or because they will be staying abroad at the time of voting. As a solution to this problem, the possibility to vote by letter has been provided for. However, this requires the agreement of the trade unions.
No. For each list, the maximum number of candidates may not exceed the total number of mandates (effective and replacement mandates) to be divided. Therefore, assuming that 3 lists can be submitted (ACV-CSC, ABVV-FGTB and ACLVB- CGSLB), the maximum number of candidates is as follows:
If there is any separate representation for managerial personnel (‘kaderpersoneel/cadres’) (only for Works Councils), then the number of mandates is increased by 1 if the company has less than 100 managers and by 2 mandates if there are more than 100 managers. Separate representation for managerial personnel is only possible if there are at least 15 managers. Since, in this case, there will also be a separate list for managerial personnel, the number of mandates must also be multiplied by 4 lists to arrive at the maximum number of candidates for the Works Council.
The following are invalid: · ballots other than those handed over to the voter at the time of the voting; · ballots on which more than one vote has been cast at the top of a list; · ballots on which the voter has cast one vote at the top of a list and one or more votes for one or more candidates from another list or several other lists, or the ballots with votes for candidates from different lists; · ballots whose shape or size has been changed or which contain any paper or object inside or of which the voter can be recognised by a sign, deletion or mark.
A ballot that is not filled in with the pencil provided for in the elections may not be declared invalid for this reason alone, except if the voter can be identified, even unintentionally. In the same way, the colour of the ballpoint pen or pencil used is not in itself sufficient reason to decide that a ballot is invalid.
9. Can a voter who has been listed on the voters’ list and who has received a ballot by post vote in person at the polling station on the day of the election?
10.Can an employer, at the time of the convocations, unilaterally change the opening hours of the polling station that were initially communicated at the time the information was given to the employees (on day X)?
The employer may not change the opening hours initially notified if this change has the effect of restricting the opening hours and has had an impact on the results of the elections.
It was considered that the change of the opening hours ‘from 8.30 am to 5 pm’ to ‘from 3 pm to 5 pm’ is not regular and that it has limited the possibility for the employees to participate in the vote and that this restriction is probably the cause of the low participation rate in the vote.
On the other hand, a change in opening hours from 8 am to 8.40 am was not considered to be an irregular change, as it was not proven that such a change would have had an impact on the results of the elections.
In principle, social elections must be organised on one day.
However, where it is not possible to hold elections on one single day, they may be held on several (even non-consecutive) working days, but this will require the agreement of the Works Council or the CPPW or, in such absence, the trade union delegation.
The President of the polling station must take the necessary measures to ensure that the ballot boxes are sealed at the end of each election day.
As far as the election calendar is concerned: · All actions that precede day Y (e.g. day X-60, day X, day X+35) will be determined on the basis of the first election day; · All actions that follow day Y (e.g. Y+2, Y+25, Y+45) will be determined on the basis of the last election day.
The specific dismissal protection in the context of the social elections comprises two periods.
First, employers should be aware of the existence of the so-called ‘hidden protection period’. This is the period during which candidates for the social elections already benefit from a specific dismissal protection, even though the candidate lists are only being disclosed to the employer 65 days later. Therefore, if an employer terminates an employee during this hidden protection period, it could be that the employer, without being aware, has terminated an employee who later appears to be a candidate for the social elections and was retroactively protected against dismissal. This period starts on the 30th calendar day preceding the day the employer announces the social elections date (i.e. X-30) and ends on the day when the candidate lists are submitted (i.e. X+35).
Second, employers should be aware that the regular protection period, which immediately follows the hidden protection period, lasts in principle for 4 years and only ends when the Works Council and/or the CPPW is renewed. The only exception is for employees that were not elected during at least 2 consecutive elections. Their dismissal protection ends 2 years after the official publication of the results of the 2nd election.
Employers may only proceed with a dismissal of a protected employee if a labour court establishes a serious cause for dismissal prior to the dismissal or if the relevant joint committee establishes technical or economic reasons for a dismissal prior to the dismissal. If these procedures are not respected, then the employee can request his/her re-instatement within the company and the employer risks very substantial penalties.
In summary, depending on the situation, when terminating a protected employee (i) during the hidden protection period or (ii) after this hidden protection period has ended, without complying with the applicable procedures, the liability is as follows:
Any employee whose name is on the final voters’ list may vote, even if he/she no long works for the employer on day Y.
To avoid such a situation, the Works Council, the Committee for Prevention and Protection at Work or, failing these, the employer with the agreement of all members of the trade union delegation, may, by unanimous agreement, remove from the voters’ list those individuals who no longer work for the employer. This should be done at the latest on day Y-13. After this date, the voters’ list will be final.
Temporary agency workers may also be removed from the voters’ list in the same way, but only on the condition that they do not meet the length of service condition.
No. Voters will be summoned to vote at the latest on Y-10 by means of a convocation letter. As well as the written information of day X, this letter must include the following sentence: “To ensure the true representative character of the delegation that will be elected, all employees have the duty to take part in the vote”.
This is a general recommendation rather than a real individual ‘duty’ for the employees to vote. It is a moral appeal to the employees to exercise their right to vote. Therefore, an employee who does not vote cannot be penalised.
Since the 2020 elections, temporary agency workers have the right to vote at the user if they meet a certain seniority (i.e. length of service) requirement. While in 2020 this was a complex ‘double’ seniority condition with two reference periods, it has now been simplified for the 2024 elections. From now on, temporary agency workers can vote if they have effectively worked with the user for 32 days, whether consecutive or not, in the period from 1 November 2023 to 31 January 2024.
The question arises whether or not a temporary agency worker can also vote with the temporary work agency since, legally speaking, temporary agency workers are employees of the temporary work agency, linked to the latter by an employment contract.
Based on a literal reading of the law that does not exclude the possibility of voting at the temporarywork agency by a temporary agency worker, it would theoretically be possible for the latter to also vote at the temporary work agency if he/she meets the voting requirements there. However, since the temporary agency worker is an employee of the temporary work agency, in order to be allowed to vote there, he/she will have to meet the voting requirements for ‘regular’ employees, which are different from those for temporary agency workers at the user company (e.g. a seniority of 3 months on the election day must be demonstrated instead of 32 working days during the period from 1 November 2023 to 31 January 2024).
Please note that temporary agency workers cannot file their candidacy for election at the user.
In theory, the law does not preclude temporary agency workers from filing a candidacy with their actual employer, the temporary work agency. However, since temporary agency workers do not actually work at their legal employer, i.e. the temporary work agency, the unions have committed not to nominate temporary agency workers as candidates in the temporary work agencies.
During this webinar, Philippe De Wulf , Esther Soetens, Thomas Gellaerts and Valérie Schouteden fill you in on the “ins and outs” of the social elections 2024.
The next Social Elections will take place between 13 and 26 May 2024. If this period still seems far away, then a first set of written information should already be provided to the representative bodies and to the employees by as early as mid-December 2023 as a first step in the election procedure.
