Social elections 2012: do temporary workers count for the distribution of the mandates?

In recent case law, the question was raised whether, with respect to the distribution of the number of mandates per category of employees, one must take into account the temporary workers. At least two contradictory court decisions have been rendered until now.

As explained in our newsflashes of 1 February 2012 and 10 February 2012, the number of temporary workers employed in the company on day X is taken into account to calculate the total number of mandates to which the employee representatives are entitled in the Works Council and the Prevention Committee. This principle has been widely accepted based on a judgement of the Supreme Court of 30 March 2009 rendered on the occasion of the previous social elections in 2008.

However, on day X the company must not only determine the total number of mandates, but also the distribution of these mandates among the different categories of employees (blue-collar workers, white-collar workers, young employees and, for the Works Council, executives).

It was, however, not clear whether the temporary workers employed within the company on day X must also be taken into account for the distribution of the mandates among the different categories of employees.

The FPS Employment stated in an advice 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.

This point of view has now been confirmed by the Labour Tribunal of Brussels. In a judgement of 6 March 2012 the Labour Tribunal decided that only the workers who are effectively in service of the company need to be counted in. According to the Labour Tribunal the temporary workers thus do not have to be taken into account with regard to the distribution of the mandates among the different categories of employees.

On 7 March 2012, the Labour Tribunal of Dendermonde, section Sint-Niklaas, decided, however, in the opposite way. This Labour Tribunal ruled that the temporary workers must be taken into account with respect to the distribution of the mandates.

Definitely to be continued...