2020’s social elections in Belgium – the importance of 2019

Some of the most exciting events take place only every four years: the Olympic Games, the World Cup and the Belgian social elections to name only three.

All Belgian companies with more than 50 employees are required to organise elections to appoint a Health & Safety Committee. Above 100 employees, a Works Council should also be elected. Every four years, employees get to elect their representatives on their Health & Safety Committee and Works Council. The next go-around will be in May 2020, between the 11th and 26th.

Are you on the hook?

The reference period to assess the headcount of the company (or associated companies, see below) started on 1st October 2018 to end on 30th September 2019. To determine the average headcount at the margins, the total number of employed days for all employees combined is divided by 365.

Temporary workers who are not standing in for one of your permanent employees are also considered in the headcount, based on an average over the course of the second trimester of 2019, as of 1st April. Their average number will be determined on the total number of days worked during the trimester, divided by 92.

When two become one (for election purposes)

The headcount is assessed at the level of the legal entity, i.e. the specific employer, or at the level of the “technical operating unit” if two or more legal entities are considered to have strong links in terms of their “economic relationship” and the “social cohesion” between them.

The “economic relationship” will be considered established if two or more legal entities (i) pertain to the same economic group, are managed by the same person or persons with an economic link or (ii) have the same activity or activities which are aligned to each other, so that either way they are in practical terms part of the same business.

“Social cohesion” may be deduced from various elements such as a shared HR management or HR policies, a common recruitment policy or staff training, etc. Relying on the same payroll agency or benefit provider, the same health & safety advisor and similar templates for employment contracts or employee handbook, may also be indicative. The same goes for regular employee transfers or secondments between the entities or the organisation of a joint Christmas party or family event. This measure is aimed at preventing employers from side-stepping their collective representation obligations by chopping their operations into a lot of separate legal entities none of them with enough employees by itself to trigger those rules.

So, even though May ‘20 is still far off, actions you take in the course of this year may come back to bite you next year. Synergies in HR management implemented over the course of the last three years may be invoked by the unions in discussions on the existence of a technical operating unit where you might otherwise have been able to avoid it. Similarly, a more-than-average use of temporary workers in the coming months (that special project that was just confirmed) may cause an artificial spike in the company’s headcount and tilt the average balance towards the point of your having to organise social elections when you were not expecting it.