The Act of 4 May 2020 confirms the suspension of the social elections procedure and postpones the election dates to November 2020.
Every four years, Belgian undertakings must organise social elections to appoint the workers’ representatives to works councils (if more than 100 employees) and health and safety committees (if more than 50 employees). The initial social elections were scheduled to take place from 11 to 24 May 2020, and the prior procedure of the organisation of the social elections (which follows a strict legal calendar) was already ongoing in March, when the National Labour Council issued advice nr. 2160, in which the social partners proposed to suspend the procedure of the social elections due to the COVID-19 pandemic, and postpone the election dates to November 2020. This proposal was accepted by the legislator and implemented with the Act of 4 May 2020 (published on 13 May 2020).
Suspension of the procedure
The last step of the original procedure that still needed to be fulfilled, is the day “X+35″; on this day the list of candidate-worker representatives should have been submitted to the employer. Day X+35 could fall from 17 to 30 March 2020. On this day, the employer has the necessary information regarding which of his employees are candidates for the social elections. Therefore, the employer can identify the employees who are covered by the specific dismissal protection for candidates (see below). Suspending the procedure after this day heightens the legal certainty. This means that the procedure is suspended as of day “X+36”.
The National Labour Council proposed to hold the social election later this year, from 16 to 29 November 2020. The official new dates will be published by Royal Decree (which is expected to confirm these dates). The election day, called day “Y”, should not be chosen anew by the employer, but would logically correspond to the chosen day Y in the initial procedure (between 11 – 24 May 2020).
Restart of the procedure
As the original procedure is suspended as of “day X+36”, the procedure will continue on a new “day X+36”, which will depend on the new day Y in November. The first important step will be day “X+40”, wherein the employer will communicate the list of candidates to the employees and the presidents of the polling stations will be appointed. The new fictitious day X on which the next steps will be calculated can fall between 18 – 31 August 2020. The new day X+40 therefore, can fall between 27 September 2020 and 10 October 2020.
Current bodies continue to function
The current operating Works Council and Health and Safety Committee will continue to exist, and the elected representatives shall maintain their mandates until the new bodies are installed.
The employee representatives in the current Works Council and Health and Safety Committee maintain their dismissal protection until the installation of the new bodies, following the elections in November 2020. Also, the non-elected candidate-employee representatives of the social elections in 2016 maintain their dismissal protection until then (unless they were also not elected in the social elections of 2012; in this case their dismissal protection ceased to exist in 2018).
Further, the new candidate-employee representatives also have a dismissal protection. As of Day X+35, the candidate lists are submitted to the employer. Therefore, the employer knows who is protected, as the so-called “occult period” (during which an employee can be a candidate without the employer’s knowledge) has passed.
However, there is also a shorter occult period for employees who can replace the current candidates on the list on day “X+76”. The Act states that from the new fictitious day X, being 36 days prior to the new day X+36, a new occult period starts until the new day X+76. A candidate who is nominated no later than the new day X+76, to replace a candidate who was nominated on day X+35, will benefit from the dismissal protection from the new day X. Therefore, these replacement-candidates will not benefit from the dismissal protection until that new fictitious day X (= 18 August 2020 at the earliest), but after this day, employers should temporarily avoid dismissals.
Van Olmen & Wynant attorneys are available to assist you with these and other workplace issues. For more information, visit https://www.vow.be/.
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