As a result of the Covid-19 crisis, the social elections procedure was suspended from the initial day X+36.
The new election day (day Y) has been set between 16 and 29 November 2020 and is the benchmark for a new electoral calendar starting from day X+36.
You can create your own personal ‘Covid calendar’ (version ‘after suspension’) by clicking on the ‘calendar tool’ button below.
Meanwhile, the elections procedure has resumed with the posting of the new election date, any adapted time schedule, the adapted electoral calendar and the submitted candidates lists. If you would like to remain up-to-date, then please click on the ‘updates’ button below.
Finally, do not forget that from 18 August 2020 a second occult protection period started for any replacement candidates!
If you are organising social elections for the first time, then you will undoubtedly have many questions.
But also if this is your third or fourth time, you would probably like to know what has changed compared to the last elections and to receive quick and efficient advice when you have to deal with unforeseen situations or discussions with your trade unions. Or perhaps it is not yet clear to your company whether it will reach the thresholds and will have to organise social elections and you would like to have clarity about this point.
We will keep you informed of new developments and give you a short heads-up at every milestone date in the election calendar via our Social Elections Newsflashes. Are you interested in receiving such newsflashes, please register here.
Are you unsure whether a particular employee meets the conditions for applying as a candidate? Does the trade union want to replace a candidate on the candidates list and are you wondering if this is possible? Or do you have questions about electronic voting or the composition of the polling stations?
For these and other small 'ad hoc' questions in the course of the election procedure, Altius Social Elections Hotline Team is ready to give you a quick and ‘to the point’ answer to your questions, either by telephone or via our special social elections e-mail address. We also offer a special fee formula for this type of 'hotline support'.
Interested? Then contact us and find out about our terms and conditions.
Philippe De Wulf
+32 2 426 14 14
philippe.dewulf@altius.com
If your questions are of a more strategic nature and/or if you need assistance in litigating before the labour tribunals, then our team of experts is at your service.
We are happy to provide you with professional advice on the strategic decisions you may need to make in the run-up to the social elections, such as:
In view of the importance of the elections, it goes without saying that during each social elections procedure many employers are engaged in disputes that need to be settled before the labour tribunals. Our Employment Team has important expertise in conducting legal proceedings concerning the social elections and is happy to assist you.
The social elections have been postponed as a result of the Covid-19 crisis.
The new election day (day Y) has been set between 16 and 29 November 2020.
In principle, this new day Y automatically follows by fitting the originally chosen date into the new period (i.e. 11 May 2020 becomes 16 November 2020, 12 May 2020 becomes 17 November 2020, etc.). However, the existing consultative bodies can deviate from this automatic date-setting by a decision taken in accordance with the majority rules included in their house rules. If no consultative bodies yet exist in the company, then the employer may unilaterally determine another election day within the set period.
This new day Y will then be the benchmark for a new electoral calendar starting from day X+36.
Click on the button below and compose your new personalized ‘Covid calendar’ with the main dates in the election procedure after it will have resumed.
Create your personal calendarThe Works Council (WC) and the Committee for Prevention and Protection at Work (CPPW) must be established at the level of the so-called ‘technical business unit’ (‘TBU’). The TBU does not necessarily coincide with the legal entity. If different legal entities show a sufficient level of economic and social dependence, then they can form one single TBU and so only one WC and/or CPPW must be established.
Do the test below and discover if the legal entities in your group are likely to form one TBU or, on the contrary, are sufficiently independent from an economic and a social point of view to form separate TBUs.
TBU Tool
NO
This is not possible given that elections are a matter of public order. Any such agreement with the trade unions is therefore not legally valid.
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.
YES, but only Level 1 executives.
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.
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:
| Number of employees | Number of effective mandates for WC and CPPW (+ replacements) | Number of candidates CPPW | Number of candidates WC | Total number of candidates |
|---|---|---|---|---|
| < 100 | 4 (+4) | 24 | - | 24 |
| 100 | 4 (+4) | 24 | 24 | 48 |
| 101 < 500 | 6 (+6) | 36 | 36 | 72 |
| 501 < 1.000 | 8 (+8) | 48 | 48 | 96 |
| 1.001 < 2.000 | 10 (+10) | 60 | 60 | 120 |
| 2.001 < 3.000 | 12 (+12) | 72 | 72 | 144 |
| 3.001 < 4.000 | 14 (+14) | 84 | 84 | 168 |
| 4.001 < 5.000 | 16 (+16) | 96 | 96 | 192 |
| 5.001 < 6.000 | 18 (+18) | 108 | 108 | 216 |
| 6.001 < 8.000 | 20 (+20) | 120 | 120 | 240 |
| > 8.000 | 22 (+22) | 132 | 132 | 264 |
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.
YES
Candidates cannot be members of the polling station but can be witnesses on election day.
The following are invalid:
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.
YES
This voter's vote will be valid. The President of the polling station will ensure the cancellation of the ballot sent by post to this voter.
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:
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).
As a result of the Covid-19 crisis, the legislator decided to pause the social elections procedure from day X+36. As the lists of candidates still had to be submitted prior to the suspension of the electoral procedure (on day X+35 at the latest), the ‘occult period’ ended on that day.
Please note however that after the resumption of the electoral procedure, candidates can still be replaced by the unions and that such new ‘replacement candidates’ will be protected against dismissal from 36 days before the day on which the procedure is resumed. Thus, from 18 August 2020 there will be a 'second occult period'.
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:
| Fixed portion due? | Variable portion due? | |
|---|---|---|
| The employee requests his/her re-instatement in time and the employer accepts. | No | No |
| The employee requests his/her re-instatement in time and the employer refuses. | Yes | Yes |
| The employee does not request his/her re-instatement (in time). | No | No |
| Fixed portion due? | Variable portion due? | |
|---|---|---|
| The employee requests his/her re-instatement in time and the employer accepts. | No | No |
| The employee requests his/her re-instatement in time and the employer refuses. | Yes | Yes |
| The employee does not request his/her re-instatement (in time). | Yes | No |
With the ‘fixed’ and the ‘variable’ portion being as follows:
The fixed portion of the protection indemnity:
| Length of service < 10 years | 2 years’ salary |
| Length of service ≥ 10 years but < 20 years | 3 years’ salary |
| Length of service ≥ 20 years | 4 years’ salary |
The variable portion of the protection indemnity:
| The salary until the mandate’s expiry (i.e. 2 years or 4 years, depending on whether this is the employee’s first candidacy). |
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 voting conditions (concerning length of service conditions before and after day X).
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.
In principle, the decision to vote electronically should have been taken as early as February 2020, at a time when few had ever heard of Covid-19. Companies that did not do so at that time but, as a result of Covid-19, would like to do so now for security reasons or because their staff still (mostly) work from home, have been given the opportunity to still introduce electronic voting. ....
The Act of 4 May 2020 suspended the ongoing social elections procedure due to the Covid-19 pandemic. The procedural steps up and including day X + 35 still had to be completed. However, all procedural steps falling after X + 35 were postponed until an unspecified date. The new election dates, and therefore also the dates for resuming the procedure, have to be determined by Royal Decree.
As already announced in our previous newsflashes, the social partners have decided to suspend the current social election procedure because of the coronavirus crisis and to restart the procedure after the summer. On 24 March 2020, the National Labour Council (NLC) issued an opinion that already gives an idea of the implications of this postponement for companies. We have listed the most important likely consequences for you below.”
On X+35 at the latest (i.e. between 17 and 30 March 2020 depending on the chosen election day), the candidates’ lists per category of personnel (blue- and white collar workers, young workers and managerial personnel) must be filed with the employer by the recognised national trade unions (or their authorised agents), i.e. the ABVV/FGTB, ACV/CSC and ACLVB-CGLSB.
The “hidden protection period” is one of the most remarkable features of the social elections process. The hidden protection period is the period during which candidates already benefit from the specific dismissal protection, even though the candidate lists are only being disclosed to the employer 65 days later. Hence, there is a 65 days-gap during which an employer is not aware of an employee’s candidacy for the social elections and related dismissal protection, ...
More and more employees structurally work from home (with fixed homeworking days). Assuming the social elections date falls on an employee’s regular homeworking day, such an employee no longer needs to go to the company premises to vote. Due to some changes in the 2020 Social Elections Act of 4 April 2019, it is now possible to vote electronically from home.
Companies employing more than 100 employees can obtain an exemption from the obligation to keep a register of temporary workers (i.e. an annex to the general personnel register) if, by 30 May 2019 at the latest, they arrange for a unanimous declaration from the Works Council that the company does indeed employ more than 100 employees and this declaration is recorded in the minutes of the works council meeting.
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.
Dutch version: Mogen uitzendkrachten, die niet meer tewerkgesteld zijn bij een bedrijf op de dag van de sociale verkiezingen, deelnemen aan de stemming? Continue reading...
French version: Les travailleurs intérimaires, peuvent-ils voter le jour des élections sociales, même s'ils ne sont plus occupés par l'entreprise? Continue reading...
