Who should organise social elections?
Starting from an average employment of 50 employees, a company must organise social elections as a Committee for Prevention and Protection at Work must then be established. A Works Council must also be established at an average employment of 100 employees.
The average employment is considered over the reference period running from 1 October 2022 to 30 September 2023.
What is meant by 'enterprise' when organising social elections?
For social elections, an enterprise must be understood as a technical business unit (TBU), which is determined by the enterprise's social and economic independence.
Economic independence is manifested by the fact that the management of the establishment has a certain independence from the management of the legal entity. Social independence, however, is based on, for example, independence in human resources management. In case of doubt, the social criteria prevail.
The TBU does not necessarily coincide with the legal entity. For example, several legal entities can form a single TBU together, allowing only one election procedure to be initiated. Conversely, different branches of a single legal entity can also form several separate TBUs.
Which employees count for the calculation of average employment?
Account is taken of all persons connected to the company by an employment or learning contract, even if they are absent due to illness or an accident.
Temporary agency workers also count during the fourth quarter preceding the day of the social elections. That is the period from 1 April to 30 June 2023.
Only if the temporary agency worker replaces a permanent employee whose employment contract was suspended, only the permanent employee is included in the count.
Should a company organise social elections as soon as it hires its 50th or 100th employee?
This threshold is not based on one moment but is an average over the entire reference period. Only if an average of 50 or 100 employees are employed during the reference period, the company must organise social elections the following year.
Who is entitled to protection against dismissal?
Both non-elected and elected candidates enjoy protection against irregular dismissal during the social elections.
This protection period starts from the 30th day before the posting of the notice setting the election date. Since this will be early January 2024, it is important to already look carefully at your workforce, including long-term sick employees, and take any steps before the end of 2023.