Between 9 May and 22 May 2016, social elections will take place to appoint the members of the works council (WC) and the committee for the prevention and protection on the work floor (CPPW). However, as the different phases of the election procedure together will last up to 150 days, the start of the procedure is only some weeks away (between 11 and 24 December 2015, depending on the actual election date).

The election procedure is subject to a strict timeline which should be followed to avoid the elections being considered null and void and that new elections should be organised within the company. Non-compliance with the procedure can also lead to administrative or criminal fines.

The elections are principally organised at the level of the Technical Business Unit (TBU). This does not necessarily coincide with a legal entity of a given firm. Indeed, a TBU can be part of a legal entity and, conversely, several legal entities can form a single TBU. In order to determine a TBU, it should be assessed whether an entity can be considered as an autonomously operating entity based on economic criteria (e.g. common administration, common means of communication, same shareholders, belonging to one economic group, same activities or coordinated activities, same logo,  the legal entities participate in each other's capital, etc.) and social criteria (common intranet, telephony, fax number, same remuneration policy, proximity and communal facilities, use of similar employment contracts, common infrastructure such as buildings, parking lot, canteen, entrance, etc.). In case of contradictions, the social criteria will prevail.

Social elections should be organised in every TBU that usually employs an average of at least 50 employees (election of CPPW members). For the election of WC members, the TBU should count at least 100 employees or only 50 employees if a WC was elected or should have been elected during the previous social elections in 2012.

At the latest on the 60th day before day X (X-60), i.e., the day after the posting of the actual election date, the company must inform the WC, the CPPW, the trade union representatives or employees in writing of (i) the TBU('s) that have been identified and the different economic and social criteria used for that purpose; (ii) the number of employees per category (blue collar / white collar / management / young employees); (iii) the functions and names of the management; and (iv) the functions and names of the executives.  

Between day X-60 and X-35 consultations will take place regarding the above communication.

At the latest on day X-35 (between 5 and 18 January 2016, depending on the actual election date) the company must advise the WC, the CPPW, the trade union representatives or employees in writing of its decision concerning (i) the TBU('s); (ii) the functions and names of the management; and (iii) the functions and names of the executives.

Between X-35 and X-28 the employees and/or trade unions can lodge an appeal before the labour courts against the three above decisions. The courts must give a judgment within 23 days as from the receipt of the petition (between 4 and 17 February 2016, depending on the actual election date).

On day X, the WC, CPPW or employer must post the following information in every establishment at a place accessible for all employees: date and timing of elections,  address and name of TBU, number of mandates and division, voters lists or indication of the place where the lists are posted, list of "management staff" or indication of the place where the list is posted, list of "executives" or indication of the place where the list is posted, schedule of the elections and person or service charged with the distribution of the polling letters.

The start of the protection period for the benefit of candidates starts on X-30, not on X+35, the latter being the date by which the lists of candidates must be filed. This means that during a period of 65 days between X-30 and X+35 the candidates are not known by the company yet (in the absence of official candidate lists) and thus, there is a risk that the employer would terminate a protected employee without following the specific procedure. If the employer terminates a candidate, the employee can request to be reinstated. If the company refuses to accede to such a request, a protection indemnity is due unless the company is able to prove that the employee abused his/her right by only submitting his/her candidacy following the dismissal. Such a proof is notoriously difficult to obtain as the company does not have access to the candidate lists until X+35 and thus cannot determine on which date before X+35 the employee decided to become a candidate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.