In Belgium, all major companies are required by law to organize at every 4 years interval social elections within their enterprise. In 2016 these elections must be organized on a date anywhere between May 9 and May 22. Depending on the size of the company elections must be held for the Works Council and/or the Committee for Prevention and Protection at Work (also often referred to as the Health and Safety Committee). More than 5000 Belgian companies are implicated in this formal procedure. During these elections, the employees can elect their representatives for those collective bodies out of the lists which are proposed by the unions. In Belgium there are currently three major unions which have the right to propose candidates. All of these three major unions i.e. the catholic, the socialist and the liberal union are still very powerful as Belgium is a highly unionized country (53% of the workers are member of either one of these three unions) and unions are embedded in the many institutions of our country (unions can even appoint representatives to the Supervisory Board of the National Bank of Belgium).
What is the importance of these elections?
The social elections are important to the unions because they present an opportunity for them to show their power and the outcome of it determines the balance of power between the unions for the next four years. Moreover, in view of the tensions that exist between the current government and the unions, we can anticipate that the unions will use the election campaign as a way to demonstrate to the government that they are still relevant in many industry sectors and thus a force to be reckoned with. By the same token, this may also be the cause of tensions within companies.
Relevant thresholds for the collective bodies
The existing employment thresholds for the establishment of a Health and Safety Committee (i.e. from 50 employees onwards) and a Works Council (i.e. from 100 employees onwards) are maintained.
The reference period, which is important when calculating the average number of employees, is the year 2015. This means that it is wise to properly monitor the number of staff that is employed. Companies with various branch offices or affiliated companies at various locations in Belgium must also check at which level they must organise social elections. Is it the legal entity or the so-called technical operating unit? Indeed, different branch offices may possibly be considered as one technical operating unit, so that only one Works Council or one Health and Safety Committee will represent the various branch offices.
Competences of these bodies
Belgian industrial relations laws are based on the general principle that unions and employees are important stakeholders in the economy but that the decision making powers ultimately rest with the shareholders/owners of the company. This general principle is also reflected in the different competences that are attributed to these collective bodies.
The Works Council has extensive rights to be informed by the employer on the economical and financial information of the company, such as shareholder structure, annual accounts, its position in the relevant industry sector, etc. Moreover its has information and consulting rights in many areas that are relevant to the life cycle of a company.
The Health and Safety Committee on the other hand is competent to advise the employer in the field of safety and health at work. It is of utmost importance for industrial companies to strictly comply with the often complicated regulations.
Protection against dismissal
Employees who seek election as a candidate benefit from a quite strong protection against dismissal, even before they formally submit their candidacy. Thus as to tentative dismissals of employees beginning January 10, 2016, companies that are in the process of organizing social elections need to be very cautious. Indeed, the extended protection applies not only to the elected candidates but also to all candidates that seek election and this during the entire 4 years period (unless it was their second attempt to be elected) and as such this will increase the number of protected employees even in relatively small companies.
An example can clarify how this works: in a company employing on average 150 employees, elections need to be organized both for the Works Council and Health and Safety Committee . As a result thereof, in each of these bodies 6 employee representatives need to be elected. Provided the three unions would introduce a list for these elections with separate candidates for both collective bodies, this may - although only 12 employees will be effectively elected – result in 36 candidates and thus 36 protected employees, meaning 24% of the entire workforce !
In Belgium, protected employees can only be dismissed after a lengthy and burdensome procedure, either before the labour court or before the Labour Management Commissions and only for serious cause or economical or technical reasons. Failure to comply with these formalities might result in very high indemnities to be paid (up to several years of salary).
Very formal procedure
As we mentioned above, the social elections will be organized between May 9 and May 22, 2016. However the entire procedure will take 150 days to complete and started already on 11 December 2015 for companies organizing the elections on the first possible date, May 9, 2016. Since the procedure is laid down in legislation that is of public order it is not possible to deviate from it, even not in agreements with the unions or the employees. Therefore, any employer must pay close attention to the applicable rules and regulations when planning and implementing the different steps of the election procedure and most certainly, refrain from improvising when certain obstacles occur.
Recommendations
In addition to the formal preparation of the social elections, it is also important for the company to invest in a good social climate. The run-up to the social elections is often also a period of increased assertiveness and competition between the labour unions.
Moreover based on our experience we can also offer the following recommendations:
- Make sure that you observe scrupulously all formalities and that you document all of the different steps.
- Make sure to keep extensive minutes of the meetings of the works council/committee during which you informed them on the procedure.
- Following the elections, make sure to keep a list of all employees which submitted their candidacy for the elections because this is key HR information for the next four years.
About the author: Dylan Casaer is Partner specialised in Employment Law at Olislaegers & De Creus / Awerian. He is considered as expert in industrial relations.
