Tuesday 27 October 2015 - A lot of administrative steps are required before the bodies representing the company and the workforce can be implemented in the company in 2016. This will be done via a procedure that already starts in December 2015. It requires meticulous planning by the employer. On the other hand, decisions must be taken with regard to key concepts that are essential for the implementation by the various actors who play a role in the bodies representing the company and the workforce.
For the trade unions, a challenge to these decisions before the Labour Court is the only chance in four years to be renew or keep the social bodies in the company. Besides the practical organisation by HR of this procedure lasting 150 days, the greatest difficulty for the employer is transposing the concepts that are usually laid down by law to the company itself.
This mainly concerns the term 'company' and the management and executive functions that are key during the pre-electoral period from December 2015 to February 2016. So explanations are required, but that has a few pitfalls.
The portent of each of these terms has to be clarified by the employer based on the legal provisions and numerous judgements from the employment legislation case law in the context of judgements handed down since the last elections.
THE DEFINITION OF THE SCOPE OF THE COMPANY THROUGH THE TECHNICAL BUSINESS ENTITY
The level at which the election is to take place, and specifically how the scope is determined depends on the economic and social community in which the activities of the company take place, and the employees who contribute to those activities are gathered. In case of doubt, the employment legislation criteria are decisive.
So it can happen that the company does not necessarily match the legal entity, although it usually does. In some cases, a legal entity can consist of several TBEs (Technical business entities) or various legal entities can form a single TBE.
Only a thorough analysis of the situation will ensure that matters can be settled in a legal manner, so that the options for appeal to the labour court remain limited.
THE TWO HIGHEST LEVELS IN THE HIERARCHY FOR MANAGEMENT PERSONNEL
In the context of the social elections, a manager is not just someone who wants to be or thinks he is a manager; it is dependent on the function that a person exercises within the company rather than the individual himself. Since here, we are talking about designation of the functions which mean that the holder can be part of the employer's side, the law has come up with a restrictive definition of what constitutes management personnel.
So the employer's side can consist of those who actually manage the company, who form the highest hierarchical level, as well as their most direct employees who also participate in the day-to-day management of the company.
If there are discussions about these two levels, it is up to the workers to produce the evidence that the employer has used the incorrect definition of the functions.
EXECUTIVES WHO HOLD A DEGREE REQUIRED FOR THE FUNCTION
For the executives it is even less clear, because here, it concerns the determination of their representation in a Works Council. This does not concern hierarchical levels, but just 'senior functions' in the company which are subordinate to the management functions. Since it is not possible to define things more clearly, the law situates executives in the category of persons with a 'clerical worker' employment status, who hold a 'degree of a certain level that is required for the function' or have experience equivalent to that degree.
Here too, it must be made clear who is an executive and who is not in the TBE.
Experience shows that this determination is risky. You can assume that quite a lot of employees who think they are executives - because they have to be flexible in terms of working hours - will react when they understand that top management only considers them to be clerical workers!
Food for thought then, and not just about the legal provisions but also, and most importantly, about the start of the social dialogue from 2016 to 2020.
HOW CAN WORKERS STAND FOR ELECTION?
Any registered worker has the right, as a voter, to stand for election, provided that he has worked for the employer for six months on the date of the election. If he receives a mandate, he will have a seat as a workers' representative in the management of the companies and/or the committee for prevention and protection at work.
He will be expected to be active within the company, and divide his time between his mission of representing the workers and the obligations towards the company laid down in his employment contract.
To stand as a candidate, the worker must contact the trade union of his choice and the permanent delegate of the sector. This is who puts together the list of candidates.
A worker who puts himself forward as a candidate must take action to the extent that he manages the mandate that is assigned to him by the other workers in the company. This does not concern personal actions but a collective service that is provided to his or her colleagues concerning the professional service provision, taking account of all the values that the union wants to emphasise.
It is not always easy to comply with this in practice, so it can be useful for this delegate to attend a few training courses organised by his trade union organisation.
Food for thought concerning compliance with these legal provisions, but above all the challenges for the social dialogue that follow from 2016 to 2020.
Partena Professional maintains a blog devoted to the social elections.
See the calendar procedure of the social elections and discover which steps you have to take before, during and after the social elections.
Author: Alain Lancelot