Between 9 and 22 May 2016, social elections were held in order to establish or renew the works council ("WC") and the committee for prevention and protection at work ("CPPW"). These elections did not, however, concern the union delegation. Here are the most important points to keep in mind when installing the new WC and the CPPW.
End of the election period – Publishing and preserving documents
The following documents should be published or preserved after the end of the social election procedure:
- The report concerning the election results and the composition of the social bodies that should have been published on day "Y+2" at the latest (between 11 and 24 May 2016) ("Y" being the date of voting): publication until day "Y+86" (between 3 and 16 August 2016).
- The reports announcing the date of the elections, the election calendar, the submission of the electoral lists, the lists of candidates, the lists of members of the polling stations, the distribution of the voters, the delivery of the summons for the elections: publication until day "Y+17" (between 26 May and 8 June 2016). After this period and until day "Y+86", these reports should be made available to the workers at their request. In that framework, a notice stating the place where these documents can be consulted should be displayed in a clear and visible place.
- The documents concerning the elections that were submitted in sealed envelopes on day "Y+1" to the employer by the president of the polling station: preservation until day "Y+25" (between 3 and 16 June 2016). However, in case of appeal, the president of the station provides the competent labour court with the documents. If no appeal is lodged, or after the final decision of the appeal body, the employer may destroy the ballots.
- A list of the management functions and the members of the management personnel: preservation until the next elections at the place where the work regulations are kept.
- The reports of the election: preservation during the entire term of the newly elected body, i.e. until day "Y+45" of the next elections (in 2020). Even after this, it might be useful to keep these documents, since the results of the previous election can help to establish the period of protection against dismissal of candidates (see infra).
End of the election period – Appeal before the labour court
After publication of the report concerning the election results and the composition of the social bodies, the employer, the workers or the representative workers' and executives' organisations could lodge an appeal before the labour court until day "Y+15" (between 24 May and 6 June 2016) in order to:
- demand the (entire or partial) annulment of the elections; or
- demand the (entire or partial) annulment of the decision to terminate the procedure; or
- demand the correction of the election results; or
- challenge the members of the employer's delegation if these members do not hold one of the management functions described in the act on social elections.
In case of such an appeal, the labour court must deliver a judgment on day "Y+69" at the latest (between 17 and 30 July 2016). This judgment can be appealed until day "Y+84" (between 1 and 14 August 2016). The labour court of appeal delivers a judgment on day "Y+144" at the latest (between 30 September and 13 October 2016).
Composition
The WC and the CPPW are composed, in principle on an equal basis, of the following people:
- the president, i.e. the head of the undertaking or the person delegated to act as president, and the employer's delegation, consisting of actual and substitute delegates;
- the workers' delegation, consisting of actual and substitute delegates; and
- the secretary/secretariat.
There cannot be more members of the employer's delegation, including the head of the undertaking, than workers' delegates. There should be no fewer than two and no more than 25 actual workers' delegates. If the number of workers' delegates falls below two (i.e. when the number of actual workers' delegates is lower than two and there are no more substitute delegates or non-elected candidates to take the vacant positions), the WC and the CPPW should be renewed, which in practice means that new social elections need to be held.
Installation meeting
If no appeal is brought before the labour court, the first meeting of the WC and the CPPW is held on day "Y+45" at the latest (between 23 June and 6 July 2016). If, however, an appeal is lodged, the first meeting is held within thirty days from the final judgment in connection with the validation of the elections. In this case, the former WC and CPPW remain in place until the composition of the new WC and CPPW is final. This is a general rule which applies only where the internal regulations do not provide for a shorter period.
Internal regulations
Both the WC and the CPPW should draw up internal regulations in order to ensure the proper functioning of the body.
Certain sectoral joint committees provide a sectoral model of the internal regulations to be used. The WC and the CPPW can adapt or supplement the model depending on the needs and specific situation of the undertaking. When no such model is made available by the joint committee, the WC and the CPPW draft their own internal regulations.
Besides the provisions that mandatorily need to be included in the internal regulations, based on the applicable law and the royal decrees, it is also advisable to include provisions that are adjusted to the practices, needs and specific situation of the company.
If a WC or a CPPW already existed within the undertaking, it is advisable to revise the internal regulations at the time of renewing the body. If this is necessary, the specific procedure for revisions of the internal regulations should be followed; otherwise, the revisions will be void.
Meetings
The WC and the CPPW are convened by the head of the company or the secretary and meet at least once a month. In addition, the employer should convene the WC and the CPPW whenever at least one-third of the actual workers' delegates request a meeting.
The WC should also be convened for meetings concerning the specific information which should be provided to it. This is required in connection with (i) basic economic and financial information, (ii) annual information, (iii) periodic information and (iv) occasional information.
Competences
The WC has economic and financial competences and social competences. Depending on the nature of the competence, the WC has information, consultation, decision-making or controlling powers.
If there is a WC, the CPPW is exclusively competent to explore and propose initiatives and to otherwise contribute in an active manner to all initiatives aimed at improving the well-being of workers during the performance of their work. The CPPW is competent, depending on the nature of the competence, to give its prior consent, to make proposals or to be informed. The CPPW also handles all tasks entrusted to it by specific provisions.
In the absence of a WC, the CPPW has more extensive competences: the CPPW assumes certain competences of the WC. In that case, the employer should provide the CPPW with certain economic and financial information. In the absence of a WC and a union delegation, the CPPW also assumes some of the competences of the WC concerning social information.
Dismissal protection
Both the actual and the substitute workers' delegates in the WC and the CPPW as well as the (non-elected) candidates enjoy protection against dismissal. This protection entails that they can only be dismissed for a serious cause with the approval in advance of the labour court or for an economic or technical reason to which the prior consent of the competent joint committee (or, in the absence of such a committee, of the labour court) was obtained. If this procedure is not observed, the employer is required to pay draconian protection compensation to the worker (which can amount to 8 years' remuneration), the components of which (variable and/or fixed remuneration) vary depending on whether or not the worker has requested re-integration into the company.
It should be noted that the protection against dismissal of actual and substitute workers' delegates ends on the day of the first meeting of the new WC or CPPW (see supra), unless the delegate was also a candidate in these elections. In principle, the non-elected candidates enjoy the same protection as the actual and substitute members. However, the period of protection ends two years after publication of the results of the election if the candidate is not elected for a second time.