Coronavirus: social elections postponed

Author: Catherine Mairy (legal expert)
Date:

A law of 4 May 2020 regulates the modalities of the suspension of the procedure for the social elections, initially scheduled for the period of 11 May to 24 May 2020.

The new date for the social elections has yet to be set. In an opinion issued on 24 March 2020, the National Labour Council proposed that they should take place between 16 November and 29 November 2020.

Suspension of the procedure

The social elections procedure is suspended from day X + 36. That date is set on the basis of the electoral calendar posted on day X.

The end date of this suspension has yet to be determined.

Consequences for the ongoing procedures

The consequences of the suspension for the ongoing electoral procedures can be summarised as follows:

  1. the acts up to day X + 35 (between 17 and 30 March 2020) are finalized;

 

  1. the information and decisions resulting from these acts remain acquired; on the other hand, information and decisions relating to the date and time of the elections must be adjusted in accordance with the new date of the elections;

 

  1. the agreements concluded at company level before day X + 36 are definitively acquired; on the other hand, the agreements explicitly mentioning the coronavirus COVID-19 pandemic lose their validity unless the parties agree otherwise;

 

  1. acts carried out from day X + 36 are suspended (acts which would be carried out from that day are null and void); on the other hand, the employer may validly implement the decision to stop the procedure completely when no list of candidates has been submitted for any category of staff (the formalities to be completed in this case are described in the legislation);

 

  1. as regards the eligibility conditions, they must be fulfilled on the date initially scheduled for the elections, both for candidates that have already been nominated and for those to be nominated after the period of suspension;

 

  1. in order to assess whether a temporary agency worker posted to a user company satisfies the second electoral condition and possibly delete him from the electoral rolls on day X + 77, no account must be taken of the working days on which he was employed in the user company during the period of suspension of the procedure (this second electoral condition is as follows: the temporary agency worker must have been employed in the user company for at least 26 working days in total during a reference period starting on the date of day X and ending on day X + 77).

The existing works councils (W.C.) or the existing committees for prevention and protection at work (C.P.P.W.) will continue to function until the date of establishment of the new bodies, the duration of the mandate being extended until that date.

Consequences for protection against dismissal

Protection against dismissal of staff representatives to the W.C. and the C.P.P.W., as well as of candidate staff representatives is governed by the law of 19 March 1991 (containing special rules for dismissal for staff representatives to the W.C. and the C.P.P.W., as well as for candidate staff representatives).

The consequences of the suspension for this protection against dismissal can be summarised as follows:

  1. staff representatives who are members of the existing W.C. and/or C.P.P.W., as well as candidates already nominated in previous social elections, remain protected during the period of suspension of the procedure;

 

  1. candidate staff representatives nominated within the framework of this procedure are protected; the same will apply to staff representatives who are members of the new W.C. and/or C.P.P.W.;

 

  1. candidate staff representatives who will be nominated after the end of the period of suspension of the procedure (to replace already nominated candidates) are protected:
  • on the one hand, during the period running from day X – 30 to day X + 35;
  • and, on the other hand, during a period running from the thirty-sixth day before the day on which the election procedure is resumed (as laid down in the new electoral calendar) until the date on which the candidates elected in the next social elections are appointed (or, in the case of the second unsuccessful candidacy, until two years after the results of the postponed elections have been posted).

 

  1. (candidate) staff representatives who benefit from protection following the previous social elections and who no longer stand as a candidate in the 2020 social elections will be protected for a period which is extended by a period equal to the duration of the extension of the mandate (see above).

Particularities for the calculation of the variable part of the protection indemnity 

If the employer irregularly dismisses a protected employee during the period of protection, he must pay him a protection indemnity.

This protection indemnity consists of two parts when the employer refuses the reinstatement of the employee who has applied for it:

  • a fixed part: 2, 3 or 4 years' wages depending on whether the employee has less than 10 years, 10 to less than 20 years or 20 or more years of service in the company;
  • a variable part equal to the wages for the remaining period until the end of the mandate of the members representing the staff and to whose election the employee was a candidate.

When the irregularly dismissed employee is a (candidate) staff representative who is protected as a result of the previous social elections and who does not stand again as a candidate in the 2020 social elections, the following particularities must be taken into account in the calculation of the variable part:

  • if the employee was irregularly dismissed before 17 March 2020, the end of the mandate will be determined on the basis of a fictitious date of establishment of the new body, which is no later than 45 days after the date initially scheduled for the social elections;
  • if the employee was irregularly dismissed as of 17 March 2020, the end of the mandate will be determined on the basis of the date of establishment of the new bodies constituted following the postponed social elections.

Source: law of 4 May 2020 regulating the suspension of the social elections procedure of the year 2020 following the coronavirus COVID-19 pandemic, Belgian Official Gazette,13 May 2020.