Social elections - Act on postponement due to COVID-19 adopted
04 May 2020
As communicated in our previous newsletters, the social partners reached an agreement to postpone the 2020 sociale elections, which will therefore no longer take place in May 2020. The social elections procedure will be suspended after date X+35 (normally situated between 17 and 30 March 2020). This agreement was confirmed by the National Labour Council in its advice of 24 March 2020.
On 23 April 2020, the Chamber of Representatives approved the "Act to regulate the suspension of the social elections procedure of 2020 under the coronavirus COVID-19 pandemic".
Act governing the suspension of the social elections procedure
The above-mentioned Act will soon be published in the Belgian Official Gazette and will have a retroactive effect as from 17 March 2020. The National Labour Council’s advice of 24 March 2020 is therefore confirmed by law, however, the new social election date has not yet been determined.
The social partners suggested to hold the social elections in the period from 16 November up until and including 29 November 2020. However, the Chamber did not confirm this new date, because of the unknown evolution of the COVID-19 pandemic and the measures imposed. In order to retain as much flexibility as possible in this respect, the new social elections date will be determined by Royal Decree at a later stage. If possible, however, the date proposed by the National Labour Council will be maintained.
Suspension after date X+35
The social election procedure will be suspended after date X+35 and on a new - yet to be determined - date, the procedure will be rebooted as from date X+36. All procedural steps up to and including date X+35 are final. Agreements concluded up to and including date X+35 (such as agreements relating to voting by letter) are final as well, except for agreements that specifically relate to the COVID-19 pandemic. Such agreements will become null and void unless the contracting parties agree otherwise.
If no (valid) candidates lists were submitted on date X+35, the social election procedure will be terminated. The confirmation thereof will have to be announced and a copy of said information will have to be uploaded to the online application of the Federal Public Service in charge of Employment, Labour and Social Dialogue. The execution of this step is not suspended. Any claims against this termination will, however, have to be submitted after the general suspension of the social elections.
Companies will have to adjust the election date and the initial election calendar when the procedure is resumed after the suspension.
The electoral lists and the available seats per employee category per electoral body do not change. The social elections candidate eligibility conditions will still be determined on the “old” date Y, even for replacement candidates, who can be nominated until the new date X+76 at the latest.
Functioning of current CPPW and WC
As long as no new Committee for Prevention and Protection at Work (CPPW) or Works Council (WC) has been elected, the current consultation bodies within the company continue to function. Note that the protection against dismissal for the candidates in the 2016 social elections who currently still enjoy such protection is maintained until the new bodies are instated.
Blackout period for protection against dismissal
Candidates for the CPPW and WC are protected against dismissal as from date X-30. However, at date X-30, the employer might not have any information yet about the identity of the possible candidates. Indeed, the employee representative organisations are only required to submit the candidate lists on date X+35 at the latest. For that reason, the period in between date X-30 and date X+35 is called the blackout period for protection against dismissal.
For the employees who appeared on the candidate lists that were submitted at X+35, the blackout period ended on that day. The suspension of the social elections procedure does not change that.
However, under certain circumstances, candidates can still be replaced until the new date X+76, meaning that for those future replacement candidates, the blackout period in principle continues. The Act determines that this blackout period does not continue during the entire period of suspension of the social elections procedure, but ended on X+35 and that a new blackout period will be introduced 36 days before the new date X+36 (in essence creating a new date X for this purpose). As such, the blackout period for replacement candidates will start on the new date X and will end on the new date X+76.
New rules for the variable compensation in case of unlawful dismissal
In case of unlawful dismissal of a (candidate) employee representative, the employee is entitled to a fixed compensation that is calculated on the basis of the employee's seniority. In case of unlawful dismissal of a (candidate) employee representative whereby the reintegration in the company is requested by the employee and subsequently denied by the employer, the employee is entitled to the fixed compensation, as well as to a variable compensation. This variable compensation is equal to the salary of the employee for the period starting on the date of dismissal until the end of his mandate as employee representative. The adopted Act contains specific provisions regarding the calculation of this variable compensation for employees who were elected in the 2016 social elections, but are not a candidate in the 2020 social elections:
in case of unlawful dismissal before the social partners’ agreement (i.e. 17 March 2020), the employee is entitled to a variable compensation that needs to be calculated until the date on which the installation meeting of the new employee representative bodies would have taken place if the social election procedure would not have been suspended (i.e. at the latest until the old date Y+45);
in case of unlawful dismissal after the social partner’s agreement (i.e. 17 March 2020), the employee is entitled to a variable compensation that needs to be calculated until the new installation meeting of the new employee representative bodies (i.e. at the latest until the new date Y+45).
Temporary agency workers
For temporary agency workers to be eligible to vote in the company they are working at (the user), they have to meet a double seniority condition. The period for the first condition - be employed for at least 3 continuous months or, in the case of interrupted periods of employment, for a total of 65 working days, within the reference period from 1 August 2019 up until and including date X-1 - ended on date X-1.
However, the second condition - whereby the temporary agency worker must be employed for at least 26 working days during the period from date X up to date X+77 - didn’t end yet and will be impacted by the suspension of the procedure. In this respect, the above-mentioned Act on the suspension of the social elections states that this condition will be neutralised during the suspension of the social elections procedure. As such, in order to meet this eligibility condition, the temporary agency workers must have a total of 26 working days with the user during 2 periods taken together: the period from date X until date X+35 and the period from new date X+36 until new date X+77.
For more information on the 2020 social elections, visit our dedicated social elections website or contact one of our experts.
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