2020 Social elections: what is meant by ‘company’?

Author: Catherine Mairy
Date:

Social elections will take place between 11 May and 24 May 2020 in all companies in the sense of a technical business unit, employing a minimum number of employees.

More specifically, they will be held to elect the employees' representatives:

  • within a committee for prevention and protection at work in all companies (in the sense of a technical business unit) habitually employing at least 50 employees on average during the reference period from 1 October 2018 to 30 September 2019;
  • within a works council in all companies (in the sense of a technical business unit) habitually employing at least 100 employees on average during the reference period from 1 October 2018 to 30 September 2019.

The definition of the concept of a ‘company’ can be summarized as follows.

Elections within the technical business unit

In the context of the legislation on social elections, the company must be understood as a ‘technical business unit’ (T.B.U.) that has a certain economic and social autonomy.

The company is therefore not necessarily the same as the company within the meaning of a ‘legal entity’.

Economic autonomy

Economic autonomy implies a relative independence of the registered office or the division from the entire company, a legal entity. This autonomy is assessed on the basis of the following elements, among others:

  • the entity’s actual powers;
  • a different and autonomous management and heads of department;
  • real freedom to determine and develop business technically and economically;
  • own administrative, commercial and accounting departments (= general services).

Social autonomy

Social autonomy is characterized by the association of a certain number of employees to the same activity, an association that is a particular human community different from the other entities. It is based on social criteria, including among others:

  • the differentiation of human environments;
  • autonomy in personnel policy and in the negotiation of social issues;
  • a different wage and a different legal and fringe benefits policy.

In case of ‘doubt’, social criteria prevail over economic criteria.

Elections at a level other than the technical business unit

Elections at legal entity level

This applies to the situation where a legal entity is composed of several T.B.U. that do not individually reach the number of employees required for the establishment of a committee for protection and prevention at work and/or a works council. In such a case, they must be grouped at the level of the legal entity to reach the threshold of 50 or 100 employees.

Grouping of several T.B.U. within the same entity

When the company as a legal entity has several T.B.U. one of which does not meet the requirement of 50 employees for the committee for protection and prevention at work and of 100 employees for the works council, it is necessary to:

  • either group such T.B.U. with other T.B.U. of the same legal entity not meeting the requirement of 50 employees for the committee for protection and prevention at work or 100 employees for the works council;
  • or group such T.B.U. with another T.B.U. of the same legal entity which meets the requirement of 50 employees for the committee for protection and prevention at work or 100 employees for the works council.

Grouping of several legal entities

Several legal entities are presumed to form a T.B.U, until proven otherwise, if evidence can be supplied showing:

(1) either that these legal entities are part of the same economic group or are managed by the same person or by persons sharing an economic link between them, or that these legal entities have the same activity or their activities are linked to each other;

(2) that there are certain elements indicating social cohesion between these legal entities such as, among others, a human community grouped within the same or nearby buildings, common personnel management, a common personnel policy, employment regulations or common collective labour agreements or containing similar provisions.

If evidence can be provided of the existence of one of the economic conditions (1) and the reality of certain elements of social cohesion between the various legal entities (2), the latter shall be considered as forming a single T.B.U. unless the employer(s) provide(s) evidence that the personnel policy and management do not reflect the social criteria characterizing the existence of a T.B.U.

The presumption is therefore a rebuttable presumption that can only be invoked by the employees and the organizations representing employees and executives. It shall not prejudice the continuity, the functioning and scope of competence of the existing bodies.

Please note! Employees (and employees’ representatives) must be informed and consulted on this matter during the pre-electoral process. The procedures for doing so will be described later.

Sources: Social elections Act of 4 December 2007; organization of the business industry Act of 20 September 1948; well-being of employees in the performance of their work Act of 4 August 1996.

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