Although 2018 has not yet ended, the starting signal for the 2020 social elections has already been given. The ball is currently still in the court of the legislator and the social partners. Nevertheless, some points for attention are already clear. For the rest, the announcement of the draft Act amending the Social Elections Act is still awaited. 

Preliminary draft Act

As proposed by Minister of Employment Kris Peeters, the Council of Ministers of 16 November 2018 adopted a preliminary draft Act in preparation for the 2020 social elections. The purpose of these elections, which take place every four years in companies (technical operating units) with the requisite employment threshold, is to elect the employee representatives on the works council and the committee for prevention and protection at work.

The previous social elections, which took place in 2016, were regulated by the Act of 4 December 2007 concerning the social elections, as amended by the Act of 2 June 2015.

Through the preliminary draft Act of 16 November 2018, the Council of Ministers intends to re-amend the same Act of 4 December 2007 in order to get it ready for the 2020 social elections. The preliminary draft Act has been submitted to the Legislative Section of the Council of State for advice. Once the preliminary draft Act is submitted to the Chamber, its content will become public.

Those unable to curb their curiosity can read the National Labour Council's advice no. 2,103  dated 23 October 2018 (NLC). In this advisory report, the NLC examines the proposals for the organisation of the 2020 social elections.

Points of focus for employers

We emphasise three highlights from the NLC's advice. The future Act's parliamentary process will show whether or not they actually become statutory provisions.

1.   The NLC proposes that the social elections should take place between 11 and 24 May 2020. Consequently, employers must ensure that the election date in their company (day "Y", according to the jargon) occurs in that period.

The electoral calendar will be constructed based on the "Y" day that was chosen. Under the Act of 4 December 2007, the total procedure from the pre-electoral procedure to the social election date takes 150 days. Applied to May 2020, the pre-electoral procedure's formal starting point would therefore be in December 2019.

2.   Under the Act of 4 December 2007, the reference period for calculating the employment threshold (i.e. a threshold of 100 employees for the works council and a threshold of 50 employees for the committee for prevention and protection at work) coincides with the calendar year preceding the year in which the social elections take place.

The Ministry of Employment proposes to advance the reference period so that it can end when the pre-electoral period starts. The aim is to prevent an employer starting a social election procedure at the beginning of December 2019 only to discover at the end of the reference period (31 December) that it does not reach the threshold, or vice versa.

The NLC agrees and proposes to set the reference period to run from 1 October 2018 to 30 September 2019. Consequently, the reference period would be running already, and current developments in employment could therefore already have an impact on whether or not the employment thresholds are achieved and thus on whether or not there is an obligation to start the social election procedure in 2020.

The NLC also proposes to bring forward the period for calculating the number of interim workers from the fourth to the second quarter of 2019.

3.   The digitisation of the electoral procedure continues. This does not mean that it looks as if workers will be able to vote in their workplace using their computers in 2020. The polling stations' final hour has not (yet) come. However, deployment of the web applications is predicted to expand, especially for electronic communication and announcement purposes.

Attention to be paid to the technical operating units

In the run-up to the 2020 social elections, the technical operating units ("TOUs") will be in the spotlight again. It is at this level that the social elections will be organised and at which the consultative bodies are to be set up. A TOU does not necessarily coincide with the legal entity of the employer.

The employer must define its TOU(s) during the pre-electoral procedure. This is not an easy task, and it is (best) done with caution. The demarcation can indeed be challenged. The employer must therefore substantiate its decision based on economic criteria (in relation to management, organisation and financing) and, above all, social criteria (in relation to the employment of staff). The latter prevail.

What happens in a company at the economic and social level today can influence the demarcation of the TOUs in 2020.

Conclusion

The run-up to the 2020 social elections has already started. We will have to wait for the legislator to determine the final arrangements. Nevertheless, employers should already be examining changes in the enterprise that could have an impact on their TOUs and the employment threshold.