What is the impact of Corona on the social elections?

1. Introduction

COVID-19 also threatens to jeopardise the smooth running of the social elections procedure. Therefore, the social partners have reached an agreement to suspend the social elections procedure as from day X+36. The National Labour Council (NLC) has also provided an advice on the issues that should be regulated by law to manage the suspension and future resumption of the election procedure.

The elections procedure will have to be resumed on the new day X+36. This date will be determined depending on the new election date (day Y). The NLC proposes that the elections take place in the period that runs from 16 up to and including 29 November 2020. The new day Y cannot be freely determined, but would be the transposition of the originally chosen day Y. The established timetable is also maintained. The consultative bodies may, however, make other agreements.

2. What about the steps of the current procedural calendar?

All steps of the procedural calendar are provisionally postponed as from day X+36 until after the summer of 2020. This means that the current day X+35 (the final date for the submission of candidate lists) is maintained according to the current procedural calendar (i.e. in the period from 17 up to and including 30 March 2020, or later for the companies that started the election procedure later or when the election procedure has been delayed by a procedure before the labour tribunal).

Consequently, you do not yet have to proceed with, for instance, the posting of the candidate lists, thecomposition of the polling stations, updating the voters’ list, etc.

These steps will be postponed to a later date.

The NLC states that the agreements and decisions already made up to and including day X+35 should be definitively acquired (e.g. decision on electronic voting), unless it concerns an agreement that has become devoid of purpose and explicitly indicates the corona virus as reason for the agreement (e.g. agreements concluded over the past few weeks to organise postal voting).

3. What if I have not received a single candidate list on day X+35?

Only if you have not received a single candidate list (and this for any personnel category) may you already stop the current election procedure. You will have to complete the formalities in this respect (posting of the message regarding termination and uploading this on the web application of FPS Employment).

If you have received at least one candidate list (even if there is only one candidate), you must suspend the procedure as from day X+36. You will have to resume the procedure as from the new day X+36.

4. What about the protection of the candidates and the currently protected employees?

Existing bodies and currently protected employees

According to the NLC, the existing WC and the CPPW will continue to function until the newly electedbodies are installed. The current employees’ representatives will continue, of course, to benefit fromtheir protection until that date. This also applies to the candidates nominated in 2016 but not elected (with the exception of the non-elected candidates who were not elected at the previous elections, since their protection normally ended in May 2018).

If the existing bodies do not have to be renewed (mostly because the legal thresholds of 50 or 100 employees have not been reached during the statutory reference period), the candidates elected in 2016 will continue to benefit from their protection until six months from the first new day Y. This also applies if you do not have to organise new elections in 2020 because of the lack of required candidates.

Protection for the candidates of the social elections of 2020

The candidate on the candidate list on day X+35 benefits from protection against dismissal since day X-30 until the date of the first meeting of the WC or the CPPW of the social elections of 2024. Therefore, nothing would change to the legislation in this respect.

As regards the hidden protection period, this period is not extended, but is rather deferred.

The NLC proposes that a new hidden protection period starts on your new “fictional” day X, i.e. 36 days prior to the new day X+36, until your new day X+76. A candidate nominated at the latest on the new day X+76 to replace a candidate nominated on day X+35, benefits from the protection against dismissal as from the new day X.

In concrete terms, this would mean that employees dismissed in the period from your current day X+36 until before your new day X (between 18 and 31 August 2020 according to the proposed new election calendar) cannot be designated as a replacement. Consequently, these employees will not benefit from protection.

Protection of the employee who was a candidate in 2016 but no longer in 2020 and calculation of the indemnity

This employee benefits from protection until the newly elected bodies are installed. This also applies to the candidate not elected in 2016 (with the exception of the non-elected candidate whose protection already ended in May 2018 - hypothesis of successive unsuccessful applications).

In the event of dismissal during the protection period, the employee will be entitled to a protection indemnity, consisting of a fixed part depending on seniority on the dismissal date. In this respect, the legislation would not be changed.

In addition to this, the employee is also entitled to the part of the protection indemnity, when his request for reinstatement is not (validly) accepted by the employer. For the calculation of the variable part, the NLC proposes to make a distinction depending on the dismissal date:

  • in the event of dismissal before 18 March 2020: the variable part must be calculated based on the remuneration from the dismissal date up to and including the date of the first meeting of the newly elected WC or CPPW if the election procedure had not been suspended.
  • in the event of dismissal as from 18 March 2020: the variable part must be calculated based on the remuneration from the dismissal date up to and including the date of the first meeting of the newly elected WC or CPPW according to the resumed election procedure.