Social Elections 2024

Whether you should set up a Committee for Prevention and Protection at Work (CPPW) and/or a Works Council (WC) is to be determined at the Technical Business Unit (TBU) level. A TBU occupying more than 50 workers must organise social elections in May 2024.

Determining the structures of a TBU is not straightforward. The difficulty lies in the fact that a TBU does not always match the legal structure of your undertaking. Indeed, a legal entity can be composed of more than one TBU and, in a similar way, a legal entity can be part of the same TBU as other legal entities.

How to identify a TBU?

A TBU is determined based on a number of economic and social criteria. They indicate the level of economic and social (in)dependence between the legal entities. When in doubt, the social criteria prevail over the economic criteria. Social criteria are decisive.

Look for social and economic autonomy between the different legal entities in order to determine if they are independent from each other or if they have to be considered as a group (TBU).

Economic criteria are notably common shareholders, common board of directors, economic dependence, no autonomous management, joint commercial and administrative management , joint marketing efforts or similar activities.

Social criteria are notably the feeling of belonging, joint work organisation, joint staff policy, same benefits, proximity and common / shared facilities, equipment or activities, shared Intranet, staff newsletter, company events or team buildings.

If your company is part of a larger group, does it constitutes one TBU?

Please note that if the legal entities are part of the same economic group and if there are elements showing legal cohesion amongst the entities, the concerned legal entities will be presumed to constitute a TBU. It is then up to the legal entity to demonstrate that, despite being in the same economic group, it does not constitute a TBU with the other legal entities of the group.

The determination of the TBU's is a very strategic question as it will govern the organisation of social elections in your enterprise.

Yes, the employer is obliged to organise the social elections in May 2024 if the conditions relating to the average number of employees habitually employed during the reference period are met. 

However, the employer can stop the electoral procedure when no list of candidates has been filed for any category of workers.

In such occurrence, the employer must inter alia post a notice of "total stoppage of procedure" and the reasons why the vote will not take place, along with notifying the Labour authorities.

Who must be taken into account in the headcount of your organisation?

Headcount - General rules

All workers under a contract of employment or a traineeship contract count, regardless of their working hours or the nature of their contract (open-ended or defined term, white/blue-collar worker), including sales representatives, students, employees working remotely or from home. Special rules apply to posted workers who are still under contract with their employer, temporary agency workers of the end-user (unless they replace a permanent worker) and workers on long-term sickness leave, career breaks, etc.

Assimilation

Specific types of workers performing duties under the supervision of someone else count as "workers of the TBU" for headcount calculation purposes, even if they are not under an employment or traineeship contract with the employer (i.e. workers under special training programs, researchers).

Exclusions

The following are not included in the elections headcount:

1. independent contractors, consultants or self-employed workers
2. workers under replacement contracts (in case of contract suspension)
3. non-EEA workers occupied in Belgium but solely under an employment contract with their foreign employer
4. temporary agency workers vis-à-vis the temporary work agency
5. workers under an anticipated retirement program, amongst others.

Average headcount calculation

General rules

The 50 minimum headcount for the setting up of the Committee for Prevention and Protection at Work (CPPW) or 100 headcount for the setting up of a Works Council (WC) is based on the average headcount maintained over the period between 1st October 2022 to 30 September 2023 included.

Full-time employees

Full-time : calendar days (as logged with the Dimona) in each period starting at the date of entry in service and ending at the date of exit between 1 Oct. 2022 and 30 Sept. 2023 / 365

Part-time employees

• if occupied for at least ¾ full time, they count as full-timers;
• if occupied for less than ¾ of a full time, they count for 50% (calendar days (as logged with the Dimona) between 1 Oct. 2022 and 30 Sept. 2023 / 365 /2)

Transfer of undertaking

In the case of a transfer of undertaking involving the transfer of headcount from one employer (legal entity/TBU) to another employer (legal entity/TBU), the transferred workers only count from the date of the transfer for the TBU headcount calculation purposes. They do not count for the full reference period when determining the total headcount of the TBU. So, for example, when new headcounts are part of a TBU as a result of a transfer of undertaking dated March 15, 2023, they will only count for a period limited to 15 March 2023 to 30 September 2023 for the calculation of the average headcount in the concerned TBU.

Temporary staffing at the end-user

Temporary agency workers occupied by the end-user who do not replace permanent workers only count for the second quarter of 2023 (1 April 2023 to 30 June 2023). So only the average temporary agency workers occupied between April and June 2023 at the end-user count for the 50/100 thresholds:

Full-time

occupation in calendar days (as logged in the required Annex) between 1 April 2023 and 30 June 2023 / 92

Part-time

• if occupied for at least ¾ full time, they count as full-timers;
• if occupied for less than ¾ of a full time, they count for 50% (calendar days (as logged in the Dimona) between 1 April 2023 and 30 June 2023 / 2).

Habitual nature of the average headcount

Not only must the average headcount reach the statutory thresholds over the reference period in order to establish a WC or a CPPW, but also the average occupation must also be habitual.

It is of utmost importance to determine from the outset, in to which category a worker belongs. For example, people belonging to the upper management or the executives cannot be elected.

Executives

Workers belonging to this category are the people in charge of the daily management of the Belgian entity. They represent the employer and can make binding decisions. They can be on the roll as self-employed workers, e.g. directors.

People directly reporting to these people are also part of the list of executives. To belong to that second category, people should perform daily management tasks in the Belgian business and be on the payroll.

Typically, the CEO belongs to the first category and the CFO, Chief People Officer or COO will belong to the second group.

These people will represent the employer within the WC / CPPW after the elections. They have the right to vote but cannot be candidates. This also means that they cannot be protected against dismissal.

Managers

Managers constitute a separate category of people for the election of the members of the WC. For the CPPW, they are part of the wider group of white-collar workers (see below).

To belong to that category, people should hold a position with a certain level of responsibility and a certain degree of independence. Managers are, in general, in possession of a degree certificate or equivalent professional experience.

More than the title of the job, it is the content of the function that is decisive.

Other categories

Blue-collar workers and white-collar workers participate in the elections as two separate categories.

Younger workers (< 25 years) also constitute a separate group if there are at least 25 of them in the company.

This category of workers should be looked at closely if your company relies on temporary agency workers on a large scale. 

Voting rights 

Temporary agency workers can vote in the social elections at the user's legal entity or TBU if they have worked effectively 32 working days with the end user (with or without interruption) during the period running from 1 November 2023 to 31 January 2024 inclusive, unless they replace employees during the suspension of the performance of their employment contract. 

With regard to this seniority condition, only "effective working days" with the end user will be considered. The 32-day requirement applies to both uninterrupted and interrupted periods of employment.

Staffing companies must provide the user with some data on the temporary agency workers within five calendar days after the reference period at the user's request to allow the user to actively prepare its voters' list by Day X (between 13 and 26 February 2024).

Voters list

The voters list must include the capacity of temporary worker, on top of the usual information about voters, such as their surname, first name, date of birth, date of entry in service and the place where (s)he works in the company.

Employee representatives elected to the Works Council and to the CPPW are protected against dismissal. The same applies to non-elected candidates.

What kind of protection are we talking about?

There exists a very large protection against dismissal. This means that the protected employees may only be dismissed in the following situations: (i) a dismissal on serious grounds recognised by the labour court or (ii) for an economic or technical reason previously approved by the competent joint committee (e.g. in case of a restructuring).

Protection indemnity

In the event of unlawful dismissal, the employer faces very heavy financial penalties. These penalties have been introduced to act, as having a deterrent effect on the employer.

• If the employer dismisses a protected employee without respecting the due procedure, he must, upon the request of the employee, reinstate him or pay him a protection indemnity. If the employee asks for his reinstatement and the employer refuses it, the protection indemnity consists of two parts: a fixed part and a variable part. The fixed part amounts to: 2, 3 or 4 years of salary, depending on the seniority of the employee (less than 10 years, between 10 and 20 years, or more than 20 years). The variable part is equal to the salary for the period between the date of the termination and the end of the mandate of the members of the WC or CPPW.
• Only the fixed part of the indemnity (two, three or four years of salary, depending on the seniority) must be paid if the employee does not ask for his reinstatement.
• Social security contributions (+/- 27% of the indemnity) are to be paid on top of the indemnity. The protection indemnity absorbs the indemnity in lieu of notice.

Who is protected against dismissal?

The protection from dismissal applies to all candidates in the social elections. It means that not only the actual elected candidates in the WC and/or the CPPW are protected but also the non-elected candidates.

When does the protection starts?

The protection from dismissal starts in January 2024, even though the employer must submit the lists of candidates 65 days later, in March 2024. This period of 65 days running from January 2024 and ending in March 2024 (on the date when the lists of candidates is submitted to the employer), is known as the "occult period". During this period an employer may unknowingly dismiss an employee who stands as a candidate and is therefore protected against dismissal. Hence caution is required upon proceeding with dismissals in the first quarter of 2024.

And when does it end?

The protection period ends on the day the newly elected candidates take on their role in the new WC and/or the new CPPW, after the new elections (4 years later). In principle, the newly elected candidates have to take on their role within 45 days of the election day.

Whenever new management roles are created after the dedicated list is final, the employer may add new management functions by adjusting it in compliance with a specific procedure, after the display of the result of the elections. 

The employer can appoint any person (fulfilling the conditions) who will take on the management role which has been newly added to the dedicated list.

Who is on the WC and CPPW and how are they chosen?

Members of the WC/CPPW.

The WC and CPPW are composed of representatives of both the workers and the employer. The employer's delegation is composed of people on the list of Executives (see Categories of workers). Representatives of the employer can never outnumber the workers' representatives.

Timing for the set up

The employer must convene the very first meeting of the WC and/ or of the CPPW, if none has previously taken place within 30 days, after the closure of the election process. The timing for holding the first meeting after the elections can be shorter if a WC and/or CPPW were already installed after the elections of 2020 (as set up in the Internal Rules).

Members of the WC must appoint a secretary from among the employees' representatives by agreement or by the rules detailed in the Internal Rules.

Afterwards, the WC and/or CPPW must be held at least once a month.

Internal rules

Representatives of the employer and the workers must set up their own Internal Rules to ensure the due holding of the meetings and adoption of practical agreements specific to the TBU. Some joint committees have set up their own Internal Rules which are meant to serve as a template in the WC, even if amendments are allowed.

Until the social elections of 2020, candidates' names on the candidate lists were entered in the order of presentation, followed by the letter 'M' or 'F'. From now , the option ‘X’ must be included also, next to ‘F’ and ‘M’, according to the candidate's choice communicated to the trade union nominating her or him as candidate.

X does not refer to a specific category of people. Regardless of their officially registered gender, each candidate may indicate the gender they have chosen for presentation on the lists: male, female or X. For example, a transgender or intersex person may choose to identify themselves, in being a candidate, as male, female, or X regardless of their officially registered gender.

Hand-delivered 

As a rule of thumb, hand-delivering the convocation to the voters at the company remains possible. Those who are absent on the day of the handover will be summoned by registered mail, or any other means, provided that the employer can prove the delivery and receipt by the voter. 

Electronic convocation

The employer may with the Works Council, or in its absence, with the Committee for Prevention and Protection at Work or the Trade Union Delegation,  convene voters using alternative means, including the electronic convocation (notably by e-mail). To that end, voters must have a professional email address from the employer (or the user) and access to a digital tool provided by the employer (or the user) at their usual place of work (office or the location where they work for teleworkers). 

Moreover, the employer must demonstrate that the convocation was sent and received within the required timeframe.  

If your company opts for the e-convocation of voters, the temporary employment agency must provide you with the temporary worker's email address at a specific step, unless the user has provided an email address to the temporary worker. 

Remote electronic voting is possible for employees from their usual workstation in the company.

What does it entail for the organisation of the elections in practice?

Enabling e-voting in your company offers the following benefits:

• requires less preparation from your HR team prior to, during and after the vote. Preparing the ballot, organising election day, counting the votes and drafting the minutes is time consuming and may impede daily HR matters ;
• avoids having multiple polling stations for companies with more than one business seat. As the ballot box disappears, all employees irrespective of their location may vote with the same program;
• avoids having invalid votes from employees. If the e-ballot is not filled in properly by the employee, the program will generate an error message and ask the employee to complete the form again;
• increases employee participation. With a regular paper ballot, employees not working from the premises on the election date may be reluctant to come to the office premises to cast their vote. With e-voting, the employee can vote without an 'in person' check-in.

How to implement electronic voting?

E-voting must be agreed upon between the existing WC, or CPPW and the employer. In the absence of a WC or CPPW, such an agreement can be reached with the Trade Union representation in the company. Companies which don't have any employee representation in place cannot organise            e-voting. Unanimity is not required, unless your company internal rules state otherwise. It must determine the methods taken to safeguard the secrecy of vote.

For the 2024 elections, the requirement is that e-voting is done through an end-to-end encrypted network connection, ensuring reliable voter authentication. As a result, e-voting is not restricted to the employees outside of the company's premises on election day. It is now open to all employees working on that day provided that they can access the secured network to vote from their regular workstation, whether in the office or remotely.

The decision enabling e-voting is communicated to the employees at the same time as the information related to the elections. In practice, the matter shall be discussed with the WC, or the CPPW, or the Trade Union representation, prior to 13 to 26 February 2024 at the latest, depending on the election day chosen by the employer (between 13 and 26 May 2024).

Last but not least, the employer is enabled to electronically send specific documents pertaining to the elections (elections notice) to the employees and to the authorities via a dedicated web app.

Next to statistics on the right to vote of temporary agency workers, the new Act foresees the collection of statistics to monitor gender equality statistics (including figures relating to male and female employer representatives), on top of the obligation to provide statistics on the gender ratio of male and female candidates and workers representatives. 

This information must be sent to the Works Council, or failing that to the Trade Union delegation, within 6 months of the publication of the election results.