Suspension of your social elections procedure due to COVID-19: now also confirmed by law

We informed you already that the social partners in the National Labour Council have decided to suspend the social elections procedure due to the COVID-19 pandemic. The suspension is now enshrined in law by an Act that has been adopted today in the House of Representatives and soon will be published in the Belgian State Gazette. The new election dates will be set later by Royal Decree and will depend on the development of the pandemic. To the extent possible, the dates from 16 until 29 November 2020 will be maintained, but for the time being this is subject to a favourable development of the COVID-19 crisis. We will of course inform you as soon as the Royal Decree is in place.

What does this exactly mean for your company?

• When will your social elections take place?
  
  You will have to resume the election procedure on the new day X+36. This date will depend on the new election date (day Y). The Act stipulates that the new election dates are to be set by Royal Decree. Although the NLC had proposed the period of 16 to 29 November 2020 inclusive, it is not yet certain whether the elections will effectively be held in that period. In the parliamentary explanation of the Act it states that they want to wait until they have a better idea of how long the pandemic and its consequences will last. It is therefore not excluded that the social elections would be further postponed to for instance 2021. We will, of course, keep you informed.
  
  The new day Y results automatically from the logical integration of the originally chosen (first) day Y. Example: if you had planned to hold elections on Thursday 14 May 2020, the new election date will be Thursday 19 November 2020 (subject to confirmation of these dates by Royal Decree).
  
  However, the Royal Decree may well provide that other arrangements can be made at company level about a new election date, timetable and the election calendar.
  
  You can download your new election calendar here free of charge (to be updated if the Royal Decree postpones the elections to later than November 2020).
   
• What about your current election procedure?
  
  All steps of the procedural calendar are postponed as from day X+36. 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 to 30 March 2020 inclusive, 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 may not yet proceed with, for instance, the posting of the candidate lists, the composition of the polling stations, updating the voters’ list, etc. The Act stipulates expressly that all actions you would carry out or have already carried out since the original day X+36 are null and void. Furthermore, you cannot yet take into account any withdrawals of candidates. Nor is it possible to lodge a complaint or appeal against an application. Of course, we can assist you if you wish to verify whether the submitted candidate lists meet the statutory eligibility conditions and/or whether there are certain abusive applications.
  
  Example: if you were planning to hold elections on Thursday 14 May 2020, your first next step, more specifically the posting of the candidate lists (the new date for X+40) will now – provisionally – be on Wednesday 30 September 2020.
  
  The act states that the agreements and decisions already made up to and including day X+35 are definitively acquired (e.g., decision on electronic voting or the (increased) number of mandates). However, an agreement that you have concluded up to and including day X+35 at company level and that explicitly relates to the consequences of the coronavirus COVID-19 pandemic (e.g., an agreement that you have concluded over the past few weeks to organise postal voting because you have introduced telework in your company on a large scale or because you had many absences) has become invalid, unless the parties who concluded the agreement agree otherwise.
   
• 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 stop the current election procedure as from day X+36. However, 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. Appeals against the decision on complete cessation can be lodged after the period of suspension of the election procedure.
  
  If you have received at least one candidate list (even if there is only one candidate), you should have suspended the election procedure as from day X+36. For now, you may not take any further steps. You will have to resume the procedure as from the new day X+36.
   
• What about the eligibility conditions for the candidates?
  
  The Act confirms 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. This also applies for instance for the age condition of the “young candidate”: it suffices that this candidate was not 25 years old on the originally planned day Y, even if he has reached the age of 25 in the meantime on the new 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 Act stipulates 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. The temporary agency worker must therefore be employed for at least 26 working days at the user in the two periods taken together.
   
• What about the existing bodies and the currently protected employees?
  
  The existing WC and the CPPW 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 from 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).
   
• Is the hidden protection period “extended” because of the suspension of the social elections procedure? Or is there a new hidden period?
  
  The hidden protection period that ran from day X-30 up to and including X+35 has ended. A new hidden protection period, applicable to replacement candidates (until day X + 76), now applies.
  
  The Act stipulates that a new hidden period starts on your new “fictional” day X, i.e., 36 days prior to the new day X+36, up to and including 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 therefore only benefits from the protection against dismissal as from the new day X.
  
  In concrete terms, this means that employees dismissed in the period from your current day X+36 until before your new day X (normally between 18 and 31 August 2020 according to the proposed new election calendar) cannot be designated as a replacement. Consequently, these dismissed employees will not benefit from protection because the new hidden period only runs from the new day X up to and including the new day X+76.
   
• 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 does not change.
  
  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 Act makes a distinction depending on the dismissal date:
  
  - in the event of dismissal before 17 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 17 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/January 2021) 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., provisionally 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

The suspension of the election procedure is now enshrined in law. You must provisionally stop your election procedure as from day X+36 and, for now, you may not proceed with any step of the election calendar until the new day X+36. Only if not a single candidate list has been submitted (and this for any personnel category) may you stop the procedure definitively as from the original day X+36.

The new election dates still have to be confirmed by Royal Decree. This will depend on the development of the pandemic. We will, of course, keep you informed. If the dates change, we will adapt the calendar on our website www.socialelections.be , so you can easily download your new updated COVID-19 calendar.