On April 23, 2020, the law “to regulate suspension of the procedure for the 2020 social elections, because of the coronavirus COVID-19 pandemic” was adopted by the Belgian Parliament.
The law follows the opinion of the National Labour Council delivered on 24 March and suspends the electoral procedure with retroactive effect to 17 March 2020.
Here are certain points of attention for the organization of your social elections.
1. The social consultation bodies in place remain operational
Existing Works Councils and committees for prevention and protection at work (CPPT) shall continue to meet until the new consultation bodies are installed, scheduled for 45 days after election day (“Y+45”) in the absence of any appeal.
The worker representatives sitting on these bodies will continue to exercise their mandates and as such enjoy prerogatives and legal protection against dismissal, at least until 1 January 2021.
2. New date for social elections (Y-day) between 16 and 29 November 2020
You had initially chosen an election date between May 11 and May 24, 2020. This is postponed to the second half of November 2020.
Your election day will now be as follows:
| Initial Y Day | 11 May | 12 May | 13 May | 14 May | 15 May | 16 May | 17 May | 18 May | 19 May | 20 May | 21 May | 22 May | 23 May | 24 May |
| Post-poned
Y Day |
16 Nov | 17 Nov | 18 Nov | 19 Nov | 20 Nov | 21 Nov | 22 Nov | 23 Nov | 24 Nov | 25 Nov | 26 Nov | 27 Nov | 28 Nov | 29 Nov |
3. Suspension of the procedure and its reactivation at the end of September 2020.
Your electoral procedure is interrupted retroactively to the day after the communication of the lists of candidates by the trade unions (X+36).
If no candidate has been put forward, the electoral procedure can now be definitively stopped (“total” stop procedure to be notified by displaying the following form to the staff and sending the form to the Federal Public Employment Service)
If more than one candidate, or even if only one candidate is standing, the election procedure must be continued even if the number of candidates is equal to or less than the number of eligible places. In such a case, the procedure will be stopped the day before the invitations to the elections are sent out, at “X+79”, i.e. no earlier than 5 November 2020.
If the procedure continues, it will recommence on the new day “X+36”, between 23 September and 4 October 2020 depending on your new election date (determined in accordance with point 2 above).
Thus, it will not be until the end of September 2020, at the earliest, that you will have to take new steps in connection with the organisation of your elections (displaying the electoral lists and appointment of the president of the voting office at X+40, lodging of complaints and proceedings before the labour courts to denounce an abusive candidature, appointment of the electoral office, agreement on postal voting at X+56, …). In the meantime, no particular steps need to be taken, as the law stipulates that operations carried out during the suspension period are null and void (i.e. even if you have, for example, already displayed the list of candidates in March/April, you will have to do so again on the new day X in September/October 2020). Moreover, legal actions already brought by some employers against lists of candidates will be postponed until after the procedure has been recommenced.
4. Consequences for the steps already taken
All operations carried out, information displayed, judicial decisions rendered and agreements reached at company level prior to the suspension of the procedure at X+36 remain in place.
If you had entered into a special agreement with the trade unions in connection with the consequences of the coronavirus pandemic (e.g. a change of schedule for the voting day), it will automatically become inoperative unless you agree otherwise with the trade unions.
The forms displayed (with the date of the elections, the schedule of the election day and the different steps of the procedure (on form X)) will have to be adapted. A Royal Decree of Special Powers will define the modalities for resuming the procedure and the formalities to be carried out in this respect. In the meantime, forms X-60; X – 35 and X should always be displayed.
5. Impact on protection against dismissal
Candidates registered on the electoral lists communicated by the trade unions are protected against dismissal.
Employees who stood as candidates for the first time in the 2016 social elections and who are no longer represented in 2020 are also protected until the day the new consultation bodies are set up (see point 1 above). Please therefore verify the identity of the candidates not elected in 2016 and see if this was their first candidacy, before making any redundancies.
Workers who were not registered on the lists in 2020 and who did not stand for the first time in 2016 are temporarily no longer protected against dismissal until “36 days before day X + 36 of the resumption of the electoral procedure”. In concrete terms, these workers are currently no longer protected against dismissal notified before 18 August (minimum) and 31 August 2020 (if your election day is 29 November 2020). After this date, workers will again be protected by secrecy (“de manière occulte”) having regard to the discretion left to the trade union organisations to replace up to X+76 a candidate registered on the list and whose candidacy is rejected, notably where rejection follows a complaint, a disaffiliation from the trade union or a change of category.
In the event of unlawful dismissal, the protected candidate will be able to claim :
- a lump-sum protection indemnity calculated on the basis of his seniority (2 years’ remuneration when he has less than 10 years’ service; 3 years remuneration for seniority of 10 to 20 years and 4 years for seniority of more than 20 years);
- a variable indemnity (subject to a request for reinstatement formulated in the forms and within the time limits set by law and not respected by the employer), the amount of this indemnity varies according to the following two hypotheses:
- The dismissal was notified before March 17, 2020: the variable indemnity amounts to the remuneration due up to the day “Y + 45” calculated in accordance with the original calendar and the presumed installation (“Y+45”) between June 25, 2020 and July 8, 2020;
- Dismissal was notified as of March 17, 2020: the variable compensation is equal to the compensation due up to the “Y+45” day calculated in accordance with the new electoral calendar (following an election date in November 2020 and a “Y+45” day between December 31, 2020 and January 13, 2020).
For companies that are not due to hold social elections in 2020 but have a Works Council or a CPPT (in particular, following a reduction in staff resulting in an average workforce of less than 50 workers), candidates elected in the 2016 elections continue to benefit from protection against dismissal for a period of six months from the new day Y. The same applies when new elections are not held due to a lack of candidates.
6. Who will (still) be able to stand as a candidate in the November 2020 elections?
The lists of candidates have already been communicated to X+35 and, in principle, the identities of all your candidates are known.
However, in view of the discretion left to the trade unions to replace candidates on their list up to X+76, it remains possible that workers may present themselves as “new candidates” to replace a candidate who is currently registered but whose application will be rejected.
Which workers can be registered to replace them?
Only employees who, on the original date of the elections (i.e., the date initially chosen in May 2020), met the eligibility requirements (being bound by a contract of employment, not being part of the management staff, having been employed for at least three months in the undertaking as defined within the meaning of the Technical Operations Unit (‘UTE’)), may be registered to replace a candidate who has been replaced.
For temporary workers, they have the right to vote (but not to stand as a candidate) in elections provided they have been employed at least 65 days before “day X” and 26 days “between day X and day X+76”, the suspension period between March and September 2020 not being taken into account for the calculation of these 26 required days of employment.
Do not hesitate to send us an e-mail (alexandre.hachez@playground.flinn.law) with any questions you may have, the greatest caution needs to be exercised having regard to the substantial compensatory indemnities payable in respect of any irregularities or unlawful dismissal.
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