WHEN DO YOU HAVE TO ESTABLISH A WC AND/OR AN HSC?
An HSC has to be set up in companies with an average of 50 employees or more.
A WC has to be set up in companies with 100 employees or more. The same applies in companies where a WC should have been established during the previous elections, insofar as the companies still have 50 workers or more.
The 2 questions that demand answers are the following:
• On which level must the threshold of employees be calculated? This is where the notion of "TBU" comes into play.
• How does one calculate the threshold of habitually employed employees in this TBU?
"Company" = "TBU"
With regard to the social elections, the company is defined as a "technical business unit". The company, or TBU, is not a synonym of legal entity (e.g. AG, BVBA). In order to determine the TBU, it is necessary to take into account economic and employment criteria. The employment criteria are predominant.
These employment and economic criteria are not set up by law, thus it is necessary to have a look at the relevant case law. Amongst the economic criteria used:
• A separate management ;
• Separate accounting ;
• A different payroll agency;
• etc.
The employment autonomy emerges especially from:
• a separate staff management policy;
• a separate policy with regard to wages;
• a different language;
• separate social activities (e.g.: staff parties, staff newspaper);
• the absence of social contact between the members of the workforce;
• etc.
Several possible situations can occur:
• The TBU is equal to the legal entity. This is the most common and simple situation.
• The legal entity contains several TBUs.
• Several legal entities form a single TBU.
It is the employer's task to decide which TBU will have to elect and establish a WC and/or HSC.
The workforce and the trade unions can challenge the employer's decision. In order to prevent any disagreement, it is important to think the decision through carefully.
Furthermore, we strongly advise you to take a current ‘snapshot' of your company and to examine whether a number of different TBUs might not exist. With regard to the social elections of 2016, it could indeed be useful to clarify a certain number of points in your company or to restructure the company (merger, demerger, etc.).
Which workers are counted?
The obligation to set up a WK or/and an HSC depends on the average number of workers habitually employed in the company.
In order to calculate this average number for the social elections of 2016, one should consider the calendar year 2015 as the reference year.
We advise you to chart the current workforce numbers within your company. It is indeed possible that within your company, the threshold of 50 or 100 workers is only just reached. A focused personnel management in 2015 could therefore be worth considering.
In this respect, it is also important to know which employees will have to be taken into consideration.
• The long-term disabled employees should not be forgotten.
• Temporary workers have a special position. If the same principles apply for the 2016 social elections as for the last social elections in 2012, only temporary workers employed in the 4th quarter of 2015 will need to be considered. The number of temporary workers employed in the first three quarters of 2015 will thus have no impact.
• If your company is internationally active, it is important to know whether workers who are seconded abroad need to be counted. In principle, if they have employment contracts with the Belgian company and provided they do not work abroad on a regular basis, they should be counted. However, depending on the specific situations of the workers who are working abroad, they could be considered as habitually working abroad, in which case it could be argued that they ought not to be counted.
A CATEGORY OF WORKERS NOT TO LOSE SIGHT OF: THE EXECUTIVE AND MANAGERIAL STAFF
During the social elections, executive and managerial staff are special categories. Indeed, the workers who belong to this category cannot be elected, are not entitled to vote, and are the staff from which the company chooses its own representatives on the WC and the HSC.
The notion of executive and managerial staff is strictly defined by law:
• They are people who are charged with the day-to-day management of the company, who have the power to represent the employer (level 1);
• As well as workers who are immediately subordinate to level 1 and insofar they perform day-to-day management tasks (level 2);
• Workers at the third level in the company may in no circumstances be considered as managerial staff for the purposes of the social elections.
Whether a worker is managerial staff must be examined considering his actual function. Day-to-day management is not to be understood in the sense of corporate law, but must be seen as the actual, independent, continual, daily management of the company.
Strategically, the more workers you are able to define as managerial staff, the fewer protected workers you will have within your company. Furthermore, this could be relevant to the question of who you want to represent the employer within the WC or the HSC.
In this context, the company's organizational chart can play an important role. There is still time, during the year 2015, to draw up or reschedule this chart in tempore non suspectu by laying down clear job descriptions or creating a management team.
TO DO
In order to better prepare yourself for the 2016 social elections, we advise you, as a first step, to draw up an organizational report, and to ask yourself the following questions:
• Are there TBUs?
• How many workers are employed in these TBUs?
• Who could be considered as managerial staff?
Once the report has been established, you will have a better idea of your obligation to establish or not a number of WCs and/or HSCs during next social elections, as well as of the matter of the managerial staff.
If you want to have an influence on the results, you can still:
• reorganize or clarify the structure of your organization (e.g. by dividing the TBU or, on the contrary, by gathering together several TBUs, etc.).
• orientate your workforce policy in 2015 (e.g.: by employing fewer temporary workers during the 4th quarter of 2015, or postpone hiring, in order to relate some workers to one TBU instead of another, etc).
• set up a chart, with job descriptions or a management committee, or modify the committee.
