Élections Sociales 2020

 

Are you under the obligation to organise social elections in 2020?

The responsibility for deciding whether or not social elections must be organised lies with the company.

Habitual average employment of 50/100 workers in the period 1 October 2018 – 30 September 2019

Social elections for a Health and Safety Committee and/or Works Council must be organized in any company (in the sense of the Technical Operating Unit[1]) that habitually employs at least 50/100 workers on average. The average number of employees is assessed during the reference year starting on 1 October 2018 and ending on 30 September 2019.

As a consequence, at this moment every employer can make their final computations and assess whether or not they are under the obligation to organize social elections.

Workers

In the framework of the social elections, the term “workers” must be understood as: “persons employed within the framework of an employment or apprenticeship contract”. This consequently includes all types of workers such as students, employees working at home, expats seconded to another company, executives, managerial staff (on the condition that they have an employment contract), etc. Workers whose employment contract is suspended (due to illness, long-term disability, time credit, etc.) must also be taken into account.

Are on the contrary not counted because they are not having an employment contract: self-employed service providers, employees of subcontractors, expats having an employment contract with another company, etc.

Although temporary workers are not working in the framework of an employment contract with the company, they must also be included in the calculation of the average headcount, unless they replace employees whose employment contract is suspended. A specific calculation method applies for temporary workers. Only temporary workers employed in the 2nd quarter of 2019 (1 April 2019 – 30 June 2019) will need to be considered. Please note already that in 2020, it is the first time that temporary workers will, under certain conditions, also be entitled to vote.

Employees employed with a replacement contract are on the contrary excluded although they are having an employment contract with the company.

 Average employment

The number of workers employed during the period 1 October 2018 – 30 September 2019 must be determined on the basis of the Dimona-declarations. Per calendar day during this reference year, one must take the total number of employees in service at that day. The sum of these numbers must be divided by 365.

If the actual working schedule of the worker does not reach 3/4th of the working schedule of a full-time worker in the company, the number of calendar days must be divided by 2. Part-time workers are consequently not counted in proportion, but for half unless they are working 75% or more.

Habitual employment

Even if it appears that the company employs 50/100 workers on average, the question arises whether the company also habitually employs 50/100 workers. No legal provision explains what must be understood by “habitually”. The systematic reduction of the company in the reference year, in accordance with a restructuring plan, can for example have as a consequence that the average cannot be considered as “habitually”. Especially in case a restructuring took place in the reference period, it is recommended to verify whether the average employment and the habitual employment correspond.

Preparation of the election procedure

Once it is decided that the thresholds are reached and that social elections must be organised, the company can start preparing the election procedure. Although the elections only take place in May 2020, a first communication regarding the TOU, the election date, the managerial personnel and executives, etc. must be done in December 2019.

 Your contacts of the Curia Employment Team: Els Leenaerts and Sofie Cleeren

 

[1] The Technical Operating Unit (TOU) is a business unit with a certain degree of autonomy. The TOU is not by definition the same as the legal entity. In order to determine the TOU, it is necessary to consider economic and social criteria. The social criteria are predominant.