Impact Corona crisis on your social elections procedure: Advice from the National Labour Council

In our Newsflash of yesterday, we informed you about the suspension of the social elections procedure. In the meantime, on 24 March 2020, the social partners in the National Labour Council provided a unanimous advice on the issues that, according to them, should be regulated by law to manage the suspension and future resumption of the procedure. In anticipation of the legislative text, you must provisionally stop the election procedure as from day X+36.

We will inform you by another newsflash and webinar as soon as the amended legislation has been adopted.

Covid-19 also threatens to jeopardise the smooth running of the social elections procedure. As we informed you in yesterday’s newsflash , the social partners have reached an agreement to suspend the election procedure as from day X+36. In the meantime, the National Labour Council (NLC) has provided an advice on the issues that should be regulated by law to manage the suspension and future resumption of the election procedure. We summarise these for you here:

• When will your social elections take place?

You will have to resume the elections procedure on the new day X+36. This date will be determined depending on the new election date (day Y). The NLC proposes that the elections take place in the period that runs from 16 up to and including 29 November 2020. The new day Y cannot be freely determined, but would automatically result from the logical integration of the originally chosen day Y. The established timetable is also maintained. The consultative bodies may, however, make other agreements.

Example: if you were to organise elections on Thursday 14 May 2020, the new date would automatically be set on Thursday 19 November 2020.

• What about your current election procedure?

All steps of the procedural calendar are provisionally postponed as from day X+36 until after the summer of 2020. This means that the current day X+35 (the final date for the submission of candidate lists) is maintained according to the current procedural calendar (i.e. in the period from 17 up to and including 30 March 2020, or later for the companies that started the election procedure later or when the election procedure has been delayed by a procedure before the labour tribunal).

Consequently, you do not yet have to proceed with, for instance, the posting of the candidate lists, the composition of the polling stations, updating the voters’ list, etc. You will have to publish the new election calendar.

Example: if you were to organise elections on Thursday 14 May 2020, the new date X+40 (posting of the candidate lists) would now correspond to Wednesday 30 September 2020.

The NLC states that the agreements and decisions already made up to and including day X+35 should be definitively acquired (e.g. decision on electronic voting), unless it concerns an agreement that has become devoid of purpose and explicitly indicates the corona virus as reason for the agreement (e.g. agreements concluded over the past few weeks to organise postal voting).

• What if you have not received candidate lists?

Only if you have not received a single candidate list (and this for any personnel category) may you already stop the current election procedure. You will have to complete the formalities in this respect (posting of the message regarding termination and uploading this on the web application of FPS Employment). If you have received at least one candidate list (even if there is only one candidate), you must suspend the procedure as from day X+36. You will have to resume the procedure as from the new day X+36.

• What about the eligibility conditions for the candidates?
  
  The NLC states that all eligibility conditions for the candidates must be assessed on the originally scheduled day Y. This also applies to the replacement candidates nominated at the latest on the new day X+76. The candidate should have reached, for instance, six months’ seniority on the originally scheduled day Y.
   
• What about the second seniority condition for temporary agency workers?
  
  For the first time in social elections, temporary agency workers are entitled to vote at the user’s premises. The temporary agency worker must meet a double seniority condition, which must be fulfilled during two reference periods. The first period ran from 1 August 2019 up to and including day X. The second period runs from day X up to and including day X+77. During this second period, the temporary agency worker must be employed for a total of at least 26 working days. The NLC proposes that this second seniority condition be neutralised during the suspension of the election procedure. In other words, the second seniority period runs from day X up to and including day X+35 and resumes from the new day X+36 up to and including the new day X+77.
   
• What about the existing bodies and the currently protected employees?
  
  According to the NLC, the existing WC and the CPPW will continue to function until the newly elected bodies are installed (at the latest on the new day Y+45). The employees’ representatives will continue, of course, to benefit from their protection until that date. This also applies to the candidates nominated in 2016 but not elected (with the exception of the non-elected candidates who were not elected at the previous elections, since their protection normally ended in May 2018).
   
• What about the protection against dismissal for candidates of 2020?
  
  The candidate on the candidate list on day X+35 benefits from protection against dismissal since day X-30 until the date of the first meeting of the WC or the CPPW of the social elections of 2024 (normally in June 2024). Therefore, nothing would change to the legislation in this respect.
   
• Is the hidden protection period ‘extended’ because of the suspension of the social elections procedure?
  
  The hidden protection period is not extended, but is rather deferred.
  
  The NLC proposes that a new hidden protection period starts on your new ‘fictional’ day X, i.e. 36 days prior to the new day X+36, until your new day X+76. A candidate nominated at the latest on the new day X+76 to replace a candidate nominated on day X+35, benefits from the protection against dismissal as from the new day X.
  
  In concrete terms, this would mean that employees dismissed in the period from your current day X+36 until before your new day X (between 18 and 31 August 2020 according to the proposed new election calendar) cannot be designated as a replacement. Consequently, these employees will not benefit from protection.
   
• What about the protection of the employee who was a candidate in 2016 but no longer in 2020? How is the protection indemnity calculated in the event of dismissal?
  
  This employee benefits from protection until the newly elected bodies are installed (at the latest on the new day Y+45). This also applies to the candidate not elected in 2016 (with the exception of the non-elected candidate not elected in the previous elections, since his protection normally ended in May 2018).
  
  In the event of dismissal during the protection period, the employee will be entitled to a protection indemnity, consisting of a fixed part depending on seniority on the dismissal date. In this respect, the legislation would not be changed.
  
  In addition to this, the employee is also entitled to the ‘variable’ part of the protection indemnity, when his request for reinstatement is not (validly) accepted by the employer. For the calculation of the variable part, the NLC proposes to make a distinction depending on the dismissal date:
  
  - in the event of dismissal before 18 March 2020: the variable part must be calculated based on the remuneration from the dismissal date up to and including the date of the first meeting of the newly elected WC or CPPW if the election procedure had not been suspended. So, the period until the originally scheduled day Y+45 (normally in June 2020) should be taken into account.
  
  - in the event of dismissal as from 18 March 2020: the variable part must be calculated based on the remuneration from the dismissal date up to and including the date of the first meeting of the newly elected WC or CPPW according to the resumed election procedure. So, the period until the new day Y + 45 (normally in December 2020) should be taken into account.
   
• What about the protection of the currently protected employees if you did not have to start an election procedure in December 2019?
  
  If you no longer reached the legal thresholds of 50 or 100 employees during the statutory reference period and therefore did not have to organise a social elections procedure for the CPPW and/or the WC, and if the existing bodies therefore do not have to be renewed, the candidates elected in 2016 will continue to benefit from their protection until six months from the first new day Y (i.e. in principle from 16 November 2020). This also applies if you do not have to organise new elections in 2020 because of the lack of required candidates.

Action point

Although the suspension of the election period still has to be confirmed by law, you must provisionally stop your election procedure as from day X+36, according to FPS Employment. Only if not a single candidate list has been submitted (and this for any personnel category) may you stop the procedure definitively.

We are currently updating our website www.socialelections.be so that you could download soon a new Covid-19 election calendar there.

The principles described above from the advice of the NLC still have to be implemented into our legislation. We will inform you as soon as the amended legislation is in place and will organise a webinar on this issue. The date and invitation will follow.