Social elections 2012: are the temporary workers taken into account for the determination of the number of mandates?

Now that day X is approaching for a lot of companies, the question arises whether or not, and to which extent, temporary workers should be taken into account for determining the number of mandates. The Federal Public Service Employment, Labour and Social Dialogue has taken a position with respect to this question.

As is generally known, an employer should take into account the number of temporary workers in his company when he determines the minimum threshold of employees that should be reached for the organisation of social elections. The Royal Decree of 12 September 2011 prescribes that the average number of temporary workers that have been employed during the last quarter of 2011, counts for the calculation of this threshold. Only those temporary workers who do not replace a permanent worker must be included.

As a result of the former social elections, the Supreme Court stated in a decision of 30 March 2009, that also for the determination of the number of mandates in the Works Council and the Committee for Prevention and Protection at Work, about which decisions will be taken on day X, the number of temporary employees that are employed by the company need to be counted in (see our Newsflash of 1 February 2012).

It was uncertain which number must be taken into account for the determination of the number of mandates: either the average number of temporary workers of the last quarter of 2011, or the number of temporary workers actually employed on day X.

The FPS Employment, Labour and Social Dialogue recently confirmed that it is only the number of temporary workers employed on day X that should be counted in. In the opinion of the FPS, only those temporary workers who do not replace a permanent worker whose employment contract is suspended (except due to economic unemployment or bad weather) should be included.

Further, it was also clarified that the temporary workers do not have to be taken into account with respect to the distribution of the mandates among the different categories of employees.

The position of the Federal Public Service has only the value of an advice and is, as a consequence, not binding. It cannot be excluded that a court of law would judge differently.