The 2020 Social Elections procedure is about to resume. In the run-up to "Resumption" day (23 September – 6 October), the Eubelius Social Elections Focus Team highlights a selection of electoral topics in four episodes.
Here is the fourth and last episode: Claims in court about Social Elections: what to expect?
The road to the Social Elections day is long (a 150-day procedure, not to mention the suspension of the procedure due to Covid-19), and it can be bumpy. There are several points in time at which a claim can be filed with the Labour Tribunal: in the course of the Social Elections procedure, and also after the Elections day. This article reviews the deadlines for claims which are already behind us, and discusses the possibilities that remain for claims in court.
(The date ranges mentioned in this article indicate the period in 2020 within which the relevant deadline falls. The precise deadline depends on the Social Elections day within your undertaking.)
A look back at the past: earlier deadlines for claims before the Labour Tribunal
In the first part of the Social Elections procedure, i.e. before the suspension, there were two deadlines for claims brought before the Labour Tribunal by the employees or their representative unions.
The first deadline was original day "X-28" (14–27 January 2020) with a possibility for the employees and the representative unions to introduce a claim against the decision, or the absence of a decision, regarding the list of functions (title and content) of the managerial staff, the number and demarcation of the technical operation unit(s) and the possible list of function(s) (title and content) of the executives.
The second deadline was original day "X+21" (3–16 March 2020) with a possibility for the employees and the representative unions to introduce a claim against the decision, or the absence of a decision, following an internal complaint against the list of voters, the number of mandates per body and per category of employees, the list of the managerial staff (names) and the possible list of executives (names).
As these deadlines have now passed, those aspects can no longer be challenged.
Looking to the future: which claims might still be introduced?
Although part of the Social Elections procedure is already behind us, judicial proceedings could potentially still be instituted. Here is an overview.
After "Resumption" day (day "X+36") and before the Social Elections day (day "Y")
Which claims are possible?
A claim can be brought before the Labour Tribunal against a candidacy or a list of candidates in case of:
-
non-fulfilment of one or more of the conditions of eligibility,
- abuse of the right to stand as a candidate, or
- a list of candidates not meeting the legal requirements (e.g. too many candidates on the list).
Who can bring the claim?
The claim can be brought by the employer, the employees and the representative unions.
Employees and representative unions are only entitled to file such a claim against the presentation of candidates when it has already given rise to an internal complaint. The internal complaint must have been addressed to the employer after the first posting of the lists of candidates and at the latest on day "X+47" (4‑17 October 2020).
When can the claim be brought?
For employees and representative unions, the deadline for filing such a claim at the Labour Tribunal is day "X+61" (18–31 October 2020).
The deadline for the employer to file such a claim at the Labour Tribunal depends on whether or not the presentation of candidates has given rise to an internal complaint by an employee and/or a representative union:
- if no internal complaint has been made, the deadline for the employer is day "X+52" (at the latest) (9–22 October 2020).
- if an internal complaint has been made, the deadline for the employer is day "X+61" (at the latest) (18–31 October 2020).
Is appeal possible?
Appeal against the Tribunal's judgment is not possible.
After the Social Elections day (day "Y")
Which claims are possible?
1. A claim can be brought before the Labour Tribunal to annul the Social Elections:
-
to obtain partial or complete annulment of the elections,
- in case of an irregularity with an impact on the result of the elections, and
- unless the irregularity could already have been challenged at an earlier stage of the Social Elections procedure, e.g. by way of the complaint and legal redress options mentioned above.
In case of partial or complete annulment of the Social Elections, the new electoral procedure must start within three months following the final judgment (of the Labour Tribunal, or the Labour Court in case of appeal). In case of partial annulment, the electoral procedure must be restarted at the phase to which the partial annulment relates.
2. A claim before the Labour Tribunal is possible to correct the result of the elections, e.g. in the event of miscalculation.
3. A claim before the Labour Tribunal is possible against the decision to (partially or completely) stop the Social Elections procedure: in certain cases where no candidates are presented or only one list is presented, it is possible to put an end to the Social Elections procedure, pursuant to the statutory procedures and deadlines. If these are not respected, a claim can be filed.
4. A claim can be brought before the Labour Tribunal against the designation by the employer of its delegation in the works council and/or the committee for prevention and protection at work. Such a claim can be filed when these designated members are not part of the managerial staff.
Who can bring the claim?
The claims can be brought by the employer, the employees and the representative unions.
When can the claim be brought?
The claims can be brought 13 days after the posting of the results of the elections, i.e. on day "Y+15" (at the latest) (1–14 December 2020). If the results are posted on day "Y+1", the deadline will fall on day "Y+14".
Is appeal possible?
Appeal is possible against the Tribunal's judgment.
Claims not regulated by the Social Elections Act
Besides the above-mentioned claims regulated by the Social Elections Act, other claims can be introduced. It is possible at all times for employers, employees and representative unions to file a claim based on the legislation regarding works councils and committees for prevention and protection at work, e.g. a claim against an employer who has wrongfully omitted to start the Social Elections procedure. It should also be noted that failing to install a works council and a committee for prevention and protection at work, and hindering their functioning, are sanctionable infringements under the Social Criminal Code.
Note: The next forthcoming procedural deadline for the 2020 Social Elections is X+29 (16‑29 September) (posting of the rectification notice) or X+40 (27 September‑10 October) (first posting of the lists of candidates), depending on the new procedural calendar within your undertaking. For more information about those two procedural steps, see our earlier articles (about the posting of the lists of candidates / about the resumption of the Social Elections procedure in general).
The Eubelius Social Elections Focus Team is keeping track of the situation. We wish you a smooth restart of the procedure and we are on standby, ready to help you through this unprecedented electoral challenge.
