In Eubelius Spotlights December 2018, we discussed advice no. 2,103 of the National Labour Council (NLC) and referred to the preliminary draft act adopted by the Council of Ministers with regard to the 2020 social elections. We also emphasised the importance of the technical operation unit (TOU). We now look at two draft acts introduced by Members of Parliament and draw attention to certain points with regard to interim work.

Not one but two draft acts on the 2020 social elections

The 2020 social elections are definitely on the agenda in Parliament now! Two draft acts have been introduced in the Chamber of Representatives: the first on 12 February 2019, and the second on 26 February 2019.

The draft acts, which are largely similar, aim to amend the Social Elections Act of 4 December 2007 on specific points, taking into account the NLC's advice no. 2,103, and to provide a legal basis for the further modernisation of certain procedural steps. The draft act of 26 February 2019 also proposes to add to the Social Criminal Code a sanction for influencing, impeding or obstructing social elections.

The draft acts also contain some interesting provisions with regard to interim workers.

Can interim workers participate?

An interim worker is legally defined as a worker who is lent out to one or more users in the context of an employment agreement for interim work entered into with an interim agency.

Consequently, interim workers do not have an employment agreement directly with the users they work for. Despite this, for the purposes of the social elections, interim workers are sometimes taken into account in the user's organisation and, conversely, they are not always taken into account in their employer's organisation, i.e. the interim agency.

Do interim workers count for the calculation of the usual average employment rate threshold? 

A works council has to be set up in TOUs with a usual average employment rate of at least 100 employees. For the setting up of a committee for prevention and protection at work, the employment rate threshold is 50 employees.

Interim workers do not count for the calculation of the usual average employment rate of their own employer, i.e. the interim agency. However, under certain circumstances, interim workers do count for the usual average employment rate in the user's company. During a specific quarter of the calendar year (the reference quarter), the user has to keep a register listing all interim workers who are working in his organisation. These interim workers are then taken into account when calculating the usual average employment rate in the user's organisation, unless they replace one of the user's permanent workers whose performance of the employment agreement is suspended.

In its advice no. 2,103, the NLC has suggested shifting the reference quarter for interim workers from the fourth to the second quarter of 2019. The reason behind this suggestion is that the NLC also suggests advancing the reference year for the usual average employment rate with regard to the organisation's own workers, so that this reference year would run from 1 October 2018 to 30 September 2019 (see Eubelius Spotlights December 2018).

These two suggestions from the NLC were accepted and included in both of the draft acts. Consequently, the adoption of one of these draft acts would mean that the reference quarter for the registration and counting of the supplementary interim workers within the company will start soon, i.e. on 1 April 2019. Employers considering making use of interim workers in the second quarter of 2019 should be aware of the possible impact this may have on their usual average employment rate and thus on their obligation to start the social elections procedure.

Is an interim worker allowed to vote within the user's organisation

Any employee (excluding managerial staff) who, on the day of the social elections, has at least three months' seniority in the legal entity – or the TOU consisting of several legal entities – has the right to vote in the social elections, provided that he/she is bound by an employment agreement or an apprenticeship agreement.

With respect to the three months' seniority condition, the NLC's advice no. 2,103 suggests taking into account any periods worked as an interim worker in the legal entity or TOU that immediately preceded entering into an employment agreement.

This suggestion did not make it into the draft act of 12 February 2019.

As for the draft act of 26 February 2019, it goes beyond this suggestion from the NLC, by providing that interim workers who have been working for the user for a certain period of time before the election day will be allowed to vote within the user's organisation (even though they have no employment agreement with the user). Moreover, similar amendments have been added to the draft act of 12 February 2019 in the meantime.

It is therefore possible that certain interim workers will be allowed to vote in their user's company in the 2020 social elections. It remains to be seen whether – and under which conditions – this minor revolution will be adopted in Parliament.

The Eubelius Social Elections Focus Team

The Eubelius Social Elections Focus Team is ready to help you through the 2020 social elections with legal advice, support with negotiations and assistance, as well as representation in court in the event of litigation. For the practical organisation of the 2020 social elections within your company, Eubelius has also renewed its collaboration with HR service provider Acerta. More information can be found here.