The Belgian social elections of 2020 would normally have taken place in the period from 11 up until and including 24 May 2020. In accordance with the applicable legal provisions, approximately 7,000 employers therefore initiated the electoral procedure in the beginning of December 2019.
As a consequence of the COVID-19 pandemic, the Act of 4 May 2020 temporarily suspended the already initiated electoral procedures after date X+35, i.e. the deadline for the first submission of the candidate lists for the employee representatives. The date of the end of the suspension was yet to be determined in a Royal Decree.
On 22 July 2020, the Royal Decree of 15 July 2020 was published in the Belgian Official Gazette, providing that the 2020 social elections will instead take place in the period from 16 November 2020 up until and including 29 November 2020, meaning that the social elections procedures will resume as from mid-August. Each employer organising social elections will now have to determine the new 2020 social elections date in function of the initially chosen date.
More specifically, if the company was conducting the electoral procedure in line with the statutory timeline (i.e. with the original election day falling between 11 and 24 May 2020), the postponed election day will automatically fall on the corresponding moment within the period from 16 to 29 November 2020. For example: if the 2020 social elections were scheduled to take place on 11 May 2020, they will now take place on 16 November 2020. The remaining social elections calendar will have to be adjusted accordingly. If you’d like to simulate your new 2020 social elections calendar, you can use the calendar tool on our dedicated social elections website.
If the application of this general rule would, however, result in a less appropriate election date, an alternative election date may be chosen within the period from 16 to 29 November 2020 by the works council or the committee for prevention and protection at work (“the committee”) in accordance with the internal regulations of the employee representative body concerned. In companies without an employee representative body, the employer can determine the alternative election date. The Royal Decree also provides for specific rules for companies that were conducting the 2020 electoral procedure with a delay.
The electoral procedures that were suspended by the Act of 4 May 2020 will thus be resumed on the 54th day preceding the newly determined election date. This corresponds to the new date X+36. Taking into account the new social elections date, this new date X+36 will be situated in the period from 23 September 2020 up until and including 6 October 2020.
Additionally, the timetable for the election day (as determined in the notice already posted on date X) in principle remains unchanged. The Royal Decree, however, provides for the possibility for the works council or committee to extend the previously determined timetable in order to allow the voting to take place safely (e.g. by ensuring compliance with social distancing measures, regularly disinfecting the polling station, etc.). In companies without an employee representative body, the employer can unilaterally amend the timetable. The adjustment of the timetable may in any case not result in a reduction of the number of hours of possible voting time in comparison to what was provided for in the notice posted on date X.
The works council or the committee, or in absence thereof, the employer, will have to adjust the electoral calendar (as was determined in the notice originally posted on day X) in function of the newly determined election date (also see above).
The adjustments to (i) the election date, (ii) the timetable (if applicable) and (iii) the electoral calendar must be formalised by the works council, the committee or the employer in the mandatory template form made available on the website of the FPS Employment, Labour and Social Dialogue (FPS Employment). The completed form must be submitted to the relevant trade unions (via web application or regular mail), the trade union delegation (if any, in absence of a works council) and the employees (by physically posting it at the company premises or making it available electronically if the employees can access this digital communication during the normal working hours) at the same time, i.e. 7 days before the new date X+36. On this occasion, the employer must also upload the form and adjust the election date in the relevant file on the web application of the FPS Employment.
Earlier this month, a draft Act providing for an extension of the possibility to introduce electronic voting for the 2020 social elections was also approved by the Belgian Parliament.
In principle, if an employer wanted to make use of electronic voting for the 2020 social elections, the decision to organise such electronic voting had to be taken by the relevant employee representative body concerned (or in its absence, by the employer in agreement with the trade union delegation) and communicated in the notice posted on date X.
It appears that several employers who initially did not opt for electronic voting in the notice posted on date X, may now nevertheless want to introduce this method of voting in light of the ongoing corona crisis.
The approved draft Act (which has, to date, not yet been published in the Belgian Official Gazette) therefore provides for the extended possibility to opt for electronic voting, even if this was not provided for in the notice posted on date X. Kindly note that, in accordance with the draft Act, it’s not up to the employee representative bodies to decide on this but that rather an agreement must be reached in this respect between the employer and the trade union(s) that submitted candidate lists for the upcoming social elections. They can conclude such an agreement as from the new date X+36 until the new date X+56 and the employer will have to immediately post this agreement within the company and submit it to the trade unions and the FPS Employment via upload to the web application or by regular mail.
These are, however, uncertain times and depending on the evolution of the pandemic, the above may still be subject to change in the future. We will of course keep you posted on any developments in this respect.
If you have any questions regarding the reboot of the 2020 social elections or the social elections in general, do not hesitate to contact us or visit our dedicated social elections website.