In this issue:
- The next social elections will take place between 11 & 24 May 2020
- The concept of a "technical operating unit" (TOU)
- Calculation of thresholds
- Launch of the pre-election procedure between 13 & 26 December 2019
The next social elections will take place between 11 & 24 May 2020
Belgium, worker representation takes place at the level of the business through the trade union delegation, the works council, and the committee for prevention and protection at work.
Social elections must be held for the election of the works council and for the committee for prevention and protection at work.
In principle, every undertaking (understood as a "technical operating unit") usually employing at least 100 employees on average (for the election of the works council) or 50 employees on average (for the election of the committee for prevention and protection at work) (20 employees on average for mining, quarrying and underground quarrying companies) shall launch the social election procedure between 13 and 26 December 2019. As mentioned in our previous Be Aware Flashes of February and April 2019, this average shall be calculated during the reference period which started on 1st October 2018 and which ended on 30 September 2019.
The concept of a "technical operating unit" (TOU)
Social elections are organised at the level of "the technical operating unit".
This is a specific concept that applies to social elections and that is defined on the basis of economic and social criteria. In case of doubt, social criteria always prevail over economic criteria.
As an example, the following economic criteria are taken into consideration:
Autonomy to make daily management decisions, different directors, different shareholders, separate accounts, separate legal/HR/finance etc. departments, separate production, different economic activities (as opposed to similar or complementary activities), existence of competition (the absence of cooperation agreements, the absence of agreements on price lists, the absence of exchange of goods), own clientele, own budget, etc.
Examples of social criteria are:
independent human resources management, different policies in terms of recruitment/dismissal/training, disciplinary sanctions; different compensation & benefits structure; distance between units; specific employment terms and conditions/policies/employment contracts/work regulation; belonging to different joint committees; working with different payroll agencies/external service for prevention and protection at work/insurers etc.; different IT/telephone/fax systems, etc.
Calculation of thresholds
To determine if the threshold of 50 or 100 workers is reached and if social elections must therefore be organized within the undertaking, the workers registered during the reference period (i.e. from 1st October 2018 until 30 September 2019) in the DIMONA system must be considered.
All workers bound by an employment contract or apprenticeship contract are taken into account, even if their employment contract was suspended (for example, in case of illness or accident). On the other hand, those employed in the framework of a replacement employment contract (for the replacement of a permanent worker) are not included in the calculation of the threshold.
To record the average number of workers usually employed during the reference period (starting on 1st October 2018 and ending on 30 September 2019) (full-time and part-time employed at least on a 3/4 full-time basis), the number of calendar days they were registered in the Dimona system during this reference period is divided by 365, based on the following formula:
For part-time workers whose working hours do not reach the 3/4 full-time basis, the total number of calendar days during which they were registered in the Dimona system is divided by two.
Specific requirements concerning temp agency workers: obligation to keep a general annex to the staff register!
Regarding temporary agency workers, even though they are not the client company's workers, as far as the calculation of the threshold is concerned, they will be considered part of the company and not of their employer (i.e. the temporary work agency). Accounting will be carried out as follows:
- Only temporary agency workers occupied during the second quarter of the year 2019 (i.e. during the months of April, May and June 2019) are taken into account;
- The temporary agency workers' average is calculated by dividing by 92 the total number of calendar days during which every temporary agency worker not replacing a permanent worker whose employment contract was suspended was registered in the annex to the general labour register for temporary agency workers for the period running from April to June 2019.
For temporary agency workers whose working hours did not reach three quarters of the working hours he/she would have had in the event of full-time employment, the total number of calendar days during which he/she was registered in the annex is divided by two.
Launch of the pre-election procedure between 13 & 26 December 2019
Depending on the date of the social elections, the launch of the pre-election procedure should take place between 13 & 26 December 2019 (on X-60).
The pre-election procedure is launched by a written communication drafted by the employer for the attention of the employee consultative bodies (the works council and/or the committee for prevention and protection at work, and in the absence of these, the trade union delegation).
The following information will need to be provided by the employer:
- the determination of the concept of a technical operating unit(s) (TOU);
- the number of employees employed per category within the TOU on X-60;
- for the election of the works council, a list of middle management staff positions (cadres/kaderleden) and, for information purposes, a list of the people holding these positions;
- a list of senior management staff positions (personnel de direction/leidinggevend personeel) and, for information purposes, a list of the people holding these positions;
- the dates of day Y (i.e. the date chosen for the elections, between 11 & 24 May 2020) and day X (i.e. the date of posting the notice announcing the date of the elections).
To comply with this obligation, the employer needs to use the form available on the website of the Belgian Federal Public Service Employment, Labour and Social Dialogue.
Once completed, this form shall:
- be provided to the members of the works council and/or the committee for prevention and protection at work, and in the absence of these, to the members of the trade union delegation;
- be posted in the undertaking for the attention of staff. This document can also be sent electronically if all workers have access to this document during their normal working hours;
- be uploaded onto the website of the Belgian Federal Public Service Employment, Labour and Social Dialogue or directly sent out to the national trade union headquarters.
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.