What are social elections?
The social election is a procedure that occurs every 4 years by which employee representatives for the works council and the Committee for Prevention and Protection at Work (CPPW) are chosen. The elections always take place during a period laid down by law. For 2020, this period runs from 11 - 24 May.
The election procedure is very formal and consists of a number of successive steps that must be followed strictly. Failure to respect the dates established, or making formal errors, may render the entire procedure null and void. In short, good preparation is essential for a smooth and correct course of action.
As the employer is responsible for the organisation of the social elections, it is very important that you, as an employer, are fully aware of the applicable regulations.
Which companies must organise elections
You need to take various elements into account to determine whether or not your company needs to organise social elections. Here are the main factors:
Technical Business Unit
In the context of the social elections, the company is considered at the level of the technical business unit (hereinafter abbreviated as TBU). The procedure itself must also be organised at this level.
However, the TBU does not necessarily coincide with the company’s legal entity (such as nv, vzw, bvba, etc.). In general, 3 situations can arise:
- the TBU and legal entity coincide;
- the legal entity consists of several TBUs;
- multiple legal entities together form one TBU.
Your company’s specific situation determines which category applies.
The specific TBU is assessed on the basis of economic and social criteria. In case of doubt, the social criteria take priority. The economic criteria are used to determine whether, for example, a particular part of the business has a certain degree of independence from the legal entity as a whole. This will be the case if the different businesses keep separate accounts, develop their own activities, maintain a differentiated marketing policy, etc.
The social criteria are used to determine whether, for example, the employees of a particular part of the business form a group of people that can be distinguished from those of the other businesses. Among other things, this can be because of a difference in language, the distance between the parts of the business, the maintenance of their own personnel policy, etc.
Conversely, 2 or more legal entities can also be regarded as 1 TBU because, based on economic and social criteria, they form a single whole.
Usual average size of workforce
Only companies with a specific employment threshold have to organise social elections. For example, the procedure for a Committee for Prevention and Protection at Work only needs to be initiated in companies that, on average, employ at least 50 people during the reference period. When the company exceeds the 100-employee threshold, it must also start the procedure for a works council.
To determine whether or not a company exceeds the employment thresholds, a calculation is made on the basis of all persons associated with the company via an employment or apprenticeship contract. These people are regarded as employees of the company and are included in the calculation of the exact number of people employed.
Temporary workers employed in the second quarter of 2019 are also included in the number of employees. However, temporary workers and employees who replace permanent employees whose employment contract has been terminated are not included. After all, the latter have already been included in the calculation
What is the reference period?
In determining the average number of people employed, you consider the number of people employed in the company for a specifically defined period, the so-called ‘reference period’. This is a period of 4 quarters.
In previous social elections, the reference period always coincided with the calendar year preceding the year of the social elections. The disadvantage of this period, however, was that the election procedure had to be started in December – that is, before the number of employees had been finalised. At that moment, some companies did not yet know whether or not they would reach the 50 employee mark, and thus would have to organise social elections at all. As a result, companies sometimes started election procedures when it was not necessary.
In order to resolve this problem, the law of 4 April 2019 (Belgian Official Gazette 30 April 2019) brought the reference period forward by 1 quarter. In concrete terms, this means that, for the forthcoming elections in 2020, the reference period runs from 1 October 2018 to 30 September 2019. The reference period for calculating the number of temporary workers has also been brought forward. To determine this number, you must consider the employment during the second quarter of the year preceding the elections (in this case, quarter 2 of 2019).
The key moments
The electoral procedure covers a period of 150 days and is constructed around 2 pivotal dates: Day X and Day Y. During this period, you will need to take the following days into account:
Day X – 60
The procedure officially starts on Day X - 60. On this day, the employer makes the first announcements about the TBU, the number of employees, and the management and staff. The elections take place exactly 150 days after this date.
Day X – 30
During the period prior to the procedure, there is one day that can have far-reaching consequences for the employer: on Day X – 30, the hidden protection period (also known as the occult period) starts. From this day onwards, employees who stand as candidates in the social elections are protected against dismissal. However, on this specific day, the employer does not yet know which employees have, or will, put themselves forward as candidates. The candidate lists do not need to be submitted until Day X + 35 – so, the employer does not yet know which employees enjoy special protection against dismissal. Therefore, it is advisable to make any planned redundancies before this date.
On Day X, the actual election procedure starts. On this day, the employer posts a message announcing, among other things, the exact date of the social elections.
Day X + 35
The next critical moment is Day X + 35. On this day, the final candidate lists must be submitted and, in addition, the occult period ends. Furthermore, if there are not enough candidates by this day, you can decide to stop the procedure either in whole or in part.
90 days after Day X is the most important day of the entire procedure: Day Y. On this day, the social elections take place, and the employees cast their votes.
Who is allowed to vote?
All employees linked to the company via an employment or apprenticeship contract, as well as all persons equated with employees, are entitled to vote – on the condition that the employees have been employed in the legal entity or TBU for at least 3 months.
All employees entitled to vote must be included in the so-called electoral registers. Employees who are not on the registers may not cast a vote on Day Y. If they do vote, then the procedure may be declared null and void.
Employees belonging to management are expressly excluded and may not participate in the vote.
A new ruling for the social elections in 2020 is that temporary workers can also vote under the following specific conditions:
- If they have been employed for at least 3 months uninterrupted, OR, in the event of interrupted employment, they were employed by the company for at least 65 working days between 1 August 2019 and Day X;
- AND they were employed by the company for at least 26 working days between Day X and Day Y-13.
So, it is very important to keep accurate records of all the days worked by each temporary worker.
Another new - and important - ruling is the opportunity for e-voting. Henceforth, subject to the agreement of the works council and the CPPW (or, in absence thereof, an agreement between the employer and the trade union delegation), those entitled to vote can vote at the workplace via a computer linked to the company network. This will not only increase the turnout, but also reduce the chance of invalid votes.
Role of management
Although the procedure focuses on the election of the employee representatives, management also has an important role to play, as the employer representatives are chosen from management. These people will represent the employer on the works council or in the CPPW.
Sometimes there is discussion about which employees belong to management. In the context of the social elections, the definition must be strictly observed. Management refers exclusively to those persons:
- who are charged with the day-to-day management of the company;
- who are authorised to represent and commit the employer (level 1);
- who are members of staff immediately subordinate to persons at level 1 if they also fulfil day-to-day management tasks (level 2).
Although the election procedure only starts in the course of December 2019, it is advisable to consider already who you would like to appoint as employer representative in the CPPW or on the works council. In this respect, you might want to adjust your company’s organisational
Contructive social dialogue
The social elections take place only every 4 years. Therefore, they by no means constitute business as usual. In order to steer the whole process in the right direction, and to be assured that the procedure runs smoothly and correctly, many employers use a specialist partner. This is not a luxury, because even the smallest error can lead to the entire procedure being declared null and void.
BDO’s Social Legal team has years of experience and can support you in all phases of the procedure and in the consultation strategy with your employees’ organisations. More specifically, our specialists help prepare for the social elections and the roll-out of the procedure. They can also assist you with the start-up of the newly elected works council, with conflicts with personnel/trade unions, with issues outside the election period as well, and so on. Think, for example, of strikes or reconciliations before the joint committee. In short, together we strive for a constructive social dialogue that is consistent with your company’s culture, values and standards.
Questions about the procedure and organisation of social elections?
Do you have any questions about the procedure and organisation of the social elections for 2020? Please contact our experts of the social legal team.