On Sunday 25 May 2014, the Belgians will cast their votes for the elections of the members of the Chamber of Representatives and the Senate, the Gewestraden (Regional councils) and the European Parliament.
However, some voters will have to work during the opening hours of the polling stations.
Do these workers have the right to take time off work in order to vote? If so, what will happen with the wage for that absence?
Pursuant to article 20, 5° of of the Employment Contract Act of 3 July 1978 , the employer is obliged to grant the worker the time he needs to fulfil his civil obligations resulting from the legislation. Since voting is compulsory (by law) in Belgium, the employer cannot prohibit the worker (who so requests) to perform his electoral duty.
In principle, taking time off work resulting from performing the electoral duty is not paid. However, article 27, 3° of the Act of 3 July 1978 stipulates that the worker is entitled to pay retention if he does not fulfil the conditions to vote by proxy and if he takes the required time off work to perform his electoral duty on the Belgian territory.
The Electoral Code stipulates that the voter who is not able to make it to the polling station for professional reasons can appoint a proxy to any other voter.
Therefore, article 27, 3° of the Act of 3 July 1978 has become unenforceable, since every worker fulfils the conditions to vote by proxy. Consequently, the worker taking time off work to go vote shall not be entitled to the payment of a guaranteed salary.
To avoid any misunderstanding, the employer is advised to inform the worker working that Sunday sufficiently in advance of the possibility to vote by proxy and of the non-payment of the salary if the worker wishes to cast his vote in person during working hours (while fulfilling the conditions to vote by proxy).
So as not to undermine the proper operation of the company, the employer shall ensure to determine the time in agreement with the workers concerned when they can take time off work if they wish to cast their vote in person. However, the condition for this is that it is not possible to go vote before or after working hours...
If such is the case, the employer can request a document proving that the worker has really presented himself in the polling station.
The worker who chooses to vote by proxy will request his employer to issue a certificate proving that he is unable to make it to the polling station for professional reasons.
The next Infoflash will deal with the right to time off and the right to pay for workers who have been appointed an office within the framework of the elections.
Sources: Employment Contract Act of 3 July 1978, articles 20, 5° and 27, 3°; Electoral Code, article 147bis.
Auteur: Catherine Legardien