Sunday 25 May 2014, regional, federal and European elections were held. Maybe some of your workers have been elected member of one or more institutions.
Workers who were candidate for the regional elections and have been elected, may under certain conditions be entitled to political leave. If this is the case, they can take time off work to exercise their mandate or office.
In this Infoflash we will only deal with the rules that apply for workers in the private sector.
With respect to the communities and regions, the worker is only entitled to political leave when he exercises the mandate or office of chairman or member of:
- the Joint Community Commission (Brussels Capital Region),
- the Flemish Community Commission (Brussels Capital Region),
- the French Community Commission (Brussels Capital Region),
- the Council of the German-speaking Community
or of member of their executive college.
Consequently, the members of a Community Council (except for the Council of the German-speaking Community) or a regional council are not entitled to political leave.
The worker who is chairman or member of one of the above institutions or who is member of their executive college shall be entitled to one day of political leave per month.
That leave can only be used for fulfilling the tasks which directly result from exercising the mandate or office.
At the start, the worker must provide proof to his employer of the existence of his mandate or office.
No legal provision compels the worker to inform his employer of the dates he will take time off work due to political leave. However, the worker exercising a mandate or an office is advised to inform his employer of his absence (preferably in writing) for organisational reasons.
The worker shall retain his normal wage paid by the employer for the days of absence due to political leave.
The normal wage is calculated in accordance with the legislation on public holidays, with the application of the threshold provided for in the insurance scheme for medical health care and benefits. Since 1 April 2013, the threshold amounts to € 3.421,66 gross per month (€ 131.6023 gross per day in a 6-day week or € 157.9228 gross per day in a 5-day week ).
The employer can obtain a reimbursement of the wages and employer's contributions for the period of the political leave. The request for the reimbursement must be submitted to the institution in which the worker exercises his mandate or office, in the form of a declaration of claim, drawn up for every worker concerned.
The worker who is a candidate for one of the mandates or offices mentioned above, enjoys protection from dismissal.
Duration of the period of protection
The period of protection starts as from the date on which the employer receives the letter informing him of the worker's candidature. The worker must send this letter within six months prior to the election date per registered mail.
The end of the protection period varies according to whether the worker being a candidate has been elected or not:
- if he is elected, the period of protection expires after expiration of the 6 months following the end of the mandate.
- if he is not elected, the protection no longer applies at the end of the 3 months following the election day in so far as the worker actually appears on the candidates lists. If not, he remains protected against dismissal until the elections.
Implication of the protection
Throughout the duration of the protection, the employer cannot carry out any act with a view to terminate the employment, except for reasons that are external to the fact that the worker is a candidate for the elections.
Sanction with regard to the termination of the employment contract
Upon such termination (namely when the employer immediately terminates the contract or notifies a period of notice without any reason that is external to the fact that the worker is a candidate or exercises a political mandate) during the period of protection against dismissal, the worker is entitled to a protective award. This protective award corresponds to six months’ wage, apart from the severance pay, even if the notified period of notice is served.
Sources: Act of 19 July 1976 imposing leave for exercising a political mandate, Moniteur Belge, 24 August 1976; Royal Decree of 28 December 1976 on the duration and the conditions for the use of the leave, granted by the Act of 19 July 1976 imposing leave for excercising a political mandate, Moniteur Belge, 31 December 1976.
Author: Catherine Legardien