2020 Social Elections: the counting of temporary employees has begun!

Author: Catherine Mairy

The next social elections will take place from 11 to 24 May 2020.

As you know, a committee for prevention and protection at work and a works council will have to be set up in companies that employ an average of at least 50 or 100 employees during a reference period.

At the end of March 2019, the Chamber adopted a bill on the organisation of the 2020 social elections.

The amendments in this bill are intended, among other things, to anticipate the reference period for calculating the threshold of employed employees.

Which persons will be taken into account?

The following factors must be taken into account when determining the number of employees employed:

  • on the one hand, the employees employed in the company (employees with an employment contract, employees with an apprenticeship contract, persons undergoing vocational training within the company under a scheme organized by the Community bodies responsible for vocational training, etc.), even if they are absent due to illness or accident.
  • and on the other hand the temporary employees made available to the (user) company, provided that they are not replacing permanent employees of whom the performance of the employment contract is suspended.

Important note! The following are not considered employees "employed by their employer":

  • employees under a replacement contract in accordance with the provisions of Article 11ter of the Employment Contracts Act of 3 July 1978;
  • temporary employees.

Over what reference period?

The law has still to confirm this, but the calculation is made over the next reference period:

  • from 1 October 2018 to 30 September 2019 for the calculation of the average number of employees employed in the company; in practice, the total number of calendar days in each period beginning on the employment start date and ending on the employment end date registered for each employee in the Dimona system during this reference period is divided by 365 (if the actual work schedule is not 3/4 of the work schedule that he would have worked full-time, the total number of calendar days is divided by 2);
  • from 1 April 2019 to 30 June 2019 for the calculation of the average number of temporary employees posted to the company (user); in practice, the total number of calendar days during which each temporary agency employee (who does not replace a permanent employee whose contract of employment has been suspended) is recorded in the 'personnel register for temporary employees' (to be kept by the user company) during the reference period is divided by 92 (if the actual work schedule of a temporary employee is not 3/4 of the time he would have worked if he had worked full-time, the total number of calendar days is divided by 2).

Important note! The user company must keep an annex to the staff register, i.e. a "temporary employee register", during the second quarter of 2019 (from 1 April 2019 until 30 June 2019).

The "temporary employee register" must contain a record of the following items for every temporary employee made available to the user:

  • their registration number; each temporary employee will be assigned a number in the register following a consecutive numbering scheme and following the chronological order in which they were made available to the user;
  • their surname and name;
  • the date on which they were made available;
  • the date on which they were no longer made available;
  • the temporary work agency employing the employee;
  • their weekly working hours.

An company can be exempted from keeping this register if the works council establishes, under certain conditions, that the threshold of 100 employees has been exceeded.
The modalities described in this infoflash will only be confirmed when the law relating to the social elections 2020 has been published.
To be continued...