Social elections are not a game!

Is offering a day off and a smartphone to all members of your personnel in case no candidates are presented for the social elections a good idea?

Earlier this week a company got particular attention in the media because, apparently, it had offered an extra day off and a smartphone to all members of its personnel (+/- 1.500 !) provided no candidates would be presented for the social elections.

A national union leader was asked to comment on this practice and a federal minister hastened to say that he would instruct the social inspection to investigate the matter.

During these comments and reactions it was also mentioned that the company had listed +/- 260 members of its personnel as executive personnel, that it had not listed any management personnel and that the elections were programmed to be held on a Saturday.

The day after, the same federal minister spread the news in the media that the company did not turn out to be such a “bad employer”, because, after all, it was established that it had started up the procedure to organize social elections and the offer to its personnel was not made the way it was presented in the media.

While making it hot news, on the one hand, the media did not bother to give decent background information and created the impression, by doing so, that employers could easily get away by making the social elections ridiculous.

That, we think, is a wrong message.

Let us have a look at the alleged practices of the company concerned:

1. Offering a smartphone and an extra day off to all members of personnel provided no candidates would be presented for the social elections

The real question is how this offer was phrased:
If the offer was phrased as mentioned above, that would, in our opinion, not constitute a violation of the legislation relating to the social elections; although it, certainly, is not in line with the spirit of the law, the legislation does not forbid an employer to encourage the members of his personnel not to become a candidate for the social elections.
It would be a different story if the offer was made to all the members of the personnel, who are not presented as a candidate for the social elections. Such a promise would certainly violate the anti-discrimination law of 10 May 2007.

2. Listing +/- 260 members of personnel (out of +/- 1.500 in total) as members of the executive personnel

Considering the definition of “executive personnel”, as explicitly included in the legislation on the social elections, it is very unlikely – if not impossible – that this practice would not constitute an obvious violation of the legislation on the social elections.
Indeed, the legislation explicitly stipulates that only the two highest levels of the hierarchy qualify as executive personnel (that is, in principle, the general manager and the persons directly reporting to him). Needless to say, pretending that +/- 260 members of personnel, out of +/- 1.500 in total, report directly to the general manager, does not only seems to be a violation of the legislation on the social elections, but rather a straight forward boycott of the social elections.

3. Not listing any members of the personnel as members of the management personnel

The same comments as above concerning the executive personnel apply in this context.

4. Organizing the elections on a Saturday

Considering the activities of the company concerned, it is most likely that a five working day system applies (Monday through Friday) and that Saturdays are not a normal day of work. In that case, also this arrangement of holding the elections on a Saturday is a flagrant violation of the legislation on the social elections, because the elections cannot be held on a day of normal inactivity of the company.

Any employer would be ill advised, if he would be encouraged by his consultants to follow the example of this company concerned.

Rather than making general propaganda comments in the national media, the national trade union leader would better proceed with an internal investigation of how his trade union handles the social elections. Rather than seeking easy publicity through the national media, the federal minister would better proceed with a thorough investigation of the case. And rather than handling this item as a “fait divers”, the media would better either proceed with giving serious background information or not spending any time at all on the case.

18 February 2016

Leila Mstoian - leila.mstoian@peeters-law.be
Marcel Houben - marcel.houben@peeters-law.be