Day X – 60

11 December 2015 if the elections
take place on 9 May 2016


Which employers are obliged to organise social elections?

Social elections are, in principle, organised at the level of the “technical exploitation unit” (herein after “TEU”).

A works’ council is to be installed in the TEU’s, employing usually on average at least 100 workers.

In the TEU’s employing usually on average at least 50 workers and where at the occasion of the social elections of 2012 a work’s council has been installed or should have been installed, a works’ council has to be maintained. However, no separate elections have to be organised for the work’s council in that case, because the tasks of the works’ council are assumed by the committee for prevention and protection at work in these TEU’s.

In the TEU’s, employing usually on average at least 50 workers, a committee for prevention and protection at work has to be established.

So, the first question, which will arise with respect to the organisation of the social elections, is the determination of the TEU, at the level of which the social elections have to be organised (see below).

For the calculation of the number of workers (usually on average at least 50 or 100) reference is made to the 4 quarters of 2015. The number does not refer to the number of persons but to fulltime equivalents.

Therefore, the number of part-time workers, performing less than three fourth hours of work of the fulltime working schedule applicable in the company, is divided by two. Part-time workers performing three fourth or more hours of work of a fulltime working schedule are assimilated to fulltime workers.

The workers, engaged by a replacement-agreement in order to replace a permanent worker, are not included.

A special arrangement applies for the temporary workers. During the fourth quarter of 2015, the employers had to keep a register, including all data concerning the temporary workers, employed during the 4th quarter. These temporary workers have to be included in the calculation of the number of workers, except if they replace a permanent worker, whose performance of the employment contract has been suspended (see on this subject also an earlier contribution on our website (homepage > social elections 2016).

Start-up of the election procedure on day X – 60

At the latest on this day X – 60 the employer must submit the following information to the works’ council or the prevention committee or, in the absence thereof, to the union delegation:

1.    composition of the TEU, the level at which, in principle, the social elections are to be organised:

In principle, the TEU coincides with the legal entity of the employer (SA, SPRL, …). However, that is not necessarily the case:
-    depending on the circumstances, several separate legal entities may have to be joined into one single TEU: it occurs that one business activity is split into several legal entities (as an example: the production in one legal entity and the commercialisation of the products in another legal entity) in order to avoid social elections;
-    also, it is not excluded that one legal entity is composed of several TEU’s: in such case, a TEU with less than 100 or 50 workers (work’s council or prevention committee) must be joined with a TEU, satisfying the number of personnel requirement.

If the TEU does not coincide with the legal entity, the employer must submit the appropriate information concerning the nature, the areas and the degree of autonomy and dependence either of the TEU or TEU’s towards the legal entity or the nature, the areas and the degree of autonomy and dependence of the legal entities towards the TEU. Economic as well as the social criteria are to be taken into consideration in this respect.

If a works’ council or a prevention committee exists, the information relates only to the changes, that took place in connection with the structure of the company, and to the new criteria of autonomy or dependence either of the TEU or TEU’s towards the legal entity or of the legal entities towards the TEU.

If no changes occurred with respect to the composition of the TEU as compared to the preceding social elections, no information has to be given concerning this item.

The composition of the TEU’s is a crucial item in several respects in connection with the entire social election procedure, and this not only because it has an influence on the potential number of protected workers.

Our team will be pleased to be at your disposal to discuss this item further with you.

2.    The number of personnel members per category:

The employer must communicate in writing the number of personnel members per category, at his employ at day X – 60.

The different categories are the blue-collar workers, the white-collar workers including the management personnel, and the executive personnel, and the young workers, that is the workers who will not have reached the age of 25 on election day; a member of the management personnel younger than 25 years must be included in the category of young workers.
(note: may it be repeated once more: “the unique status blue-collar workers/white-collar workers”  is and remains an euphoric notion, and it remains a “dead letter” with respect to the social elections).

3.    Executive personnel:

This written information concerns the functions of the executive personnel by clarifying the titles and the contents, and, as a reference, the list of the persons performing these functions.

The executive personnel is limited in principle to the two highest levels of the hierarchy.

4.    Management personnel:

This written information also relates to the functions of the management personnel, and, as a reference, the list of the persons performing these functions.

Can be considered as management personnel, only the white-collar workers who have been reported as such to the National Social Security Office.

This information must only be submitted to the works’ council or, in the absence thereof, to the union delegation, because this information is relevant only with respect to the elections for the works’ council.

In addition, the obligation to communicate this information does not apply to companies with less than 100 workers or less than 30 white-collar workers.

5.    Date of posting of the message announcing the date of the elections and the suggested date of the elections

So, the employer must communicate the date on which the date of the elections will be announced (day X) as well as the date of the elections itself (Day Y).

The information relating to the works’ council is communicated to the works’ council or, in the absence thereof, to the union delegation, while the information relating to the prevention committee is submitted to the prevention committee or, in the absence thereof, to the union delegation.

So, this really entails two separate information procedures.

Also in the absence of a works’ council, prevention committee or union delegation, the employer must communicate this information in a document.

A model of the document can be found on the website of the Belgian Federal Public Service Employment, Labour and Social Dialogue (FOD WASO (D) / SPF ETCS (F)).

A copy of the document must be posted in each department of the company.

The posting may be substituted by making the document available electronically, provided all workers have access thereto during normal working hours.

A copy of the document is also uploaded on the web application, particularly installed for that purpose on the website of the Belgian Federal Public Service Employment, Labour and Social Dialogue (FOD WASO (D) / SPF ETCS (F)).

As an alternative, the copy may be sent directly to the representative trade unions.

                                     *   *   *   *   *

The period as from the date of this information (X – 60) up to day X – 35 is intended to allow the parties (the employer, on the one hand, and the works’ council, prevention committee and, as the case may be, the union delegation, on the other hand) to consult each other about this information/ suggestions of the employer and to resolve differences of opinion, if any. The employer will have to post his decision, with or without taking into consideration the position of the other parties, on day X – 35 (see on this item the comments concerning the next date).

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

   
  Day Y  
  Day Y + 2