Social elections - Start to log your temporary agency workers in order to know if they have voting rights
23 Aug 2019
Are you working with temporary agency workers? Is there a chance that you have to organise social elections in 2020? Then this newsletter is must-read material.
On 4 April 2019, the latest changes to the social elections law were approved by the Belgian parliament. One of those changes is that, in the upcoming social elections, temporary agency workers might have voting rights in the company they are active in.
For the temporary agency workers to be eligible to vote, they have to meet a double seniority condition.
First condition
The first condition is that the temporary agency worker must 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 to and including the day before the election date must be posted (Day X-1). This day falls within the period from 10 February 2020 up to and including 23 February 2020, depending on your election date. The day on which the election date must be posted is called “Day X”.
In practice, some authors mention another reference period, stating that the reference period runs until and including Day X, which would be from 11 February 2020 up to and including 24 February 2020.
However, the Federal Public Service for Employment, Labour and Social Dialogue also calculates the reference period up to and including “Day X-1”. This seems to be logical, because, otherwise, Day X is taken into account twice, as it’s already the first day of the second reference period (see below). Based on our information, we suggest that you take Day X-1 into account.
The count of 65 individual working days should only be applied if there is an actual interruption of work during the reference period. A legal suspension of the employment contract (e.g. due to illness) is not considered an interruption in this respect, and neither are the usual days of inactivity, such as Sundays and public holidays. Weekly contracts are therefore subject to the first-mentioned calculation method, i.e. the three continuous months of employment.
Second condition
In addition, the temporary agency worker must be employed for at least 26 working days during the period from “Day X” up to the 13th day preceding the elections, which is “Day X+76”. This day falls within the period from 27 April 2020 up to and including 10 May 2020, depending on your election date.
Similarly to the first condition, some authors mention another reference period. According to them, this second reference period runs up to and including “Day X+77”, which falls within the period from 28 April 2020 up to and including 11 May 2020, depending on your election date.
However, again, it can be reasonably argued that the reference period should end on Day X+76 (and not X+77). When taking X+76 into account, it is still possible to remove temporary agency workers who met the first condition but not the second, from the voting list on Day X+77 .
We’ve asked for written advice from the Federal Public Employment Service. Once we receive written confirmation on this point, we will communicate this on our website.
General calculation methods to be taken into account
It is important to point out that, when calculating the double seniority of a temporary agency worker, a part of a day worked will count as a full working day. For instance, if a temporary agency worker only works a couple of hours on a certain day, this will count as a full working day for the calculation of the above seniority thresholds.
All working days within the legal entity or, if there are several legal entities in the technical business unit, the total days within the technical business unit, have to be taken into account for the calculation to assess the seniority condition.
All temporary agency workers who meet the double seniority conditions are eligible to vote, even if they aren’t working at your company on the election day.
Key takeaways
Simulate your company's personalised election calendar on our website!
Make a list of all temporary agency workers who work at your company as from 1 August 2019.
Register all temporary agency workers that meet the first seniority condition into the electoral register with the other employees that have voting rights. If, afterwards, it turns out that they do not meet the second condition, they must be deleted from the electoral register. If there is one, the works council must make the decision unanimously before the 13th day preceding the elections.
When a temporary agency worker meets both seniority conditions, he will be eligible to vote on Day Y, the day of the elections.
If you would like to have more information on the above or the social elections in general, don’t hesitate to contact our social elections team.
Contact us
