The 2020 Social Elections take place between 11 and 24 May 2020. The first procedural milestone already falls in December 2019. In this contribution, we explain this first procedural step and draw your attention to the ongoing reference period for the voting rights of interim workers. We also share 10 tips for GDPR-compliant social elections.
The procedure kicks off in December 2019
The first official deadline of the social elections procedure is day "X-60", which occurs between 13 and 26 December 2019 (depending on the date when the elections will be held in your company). By this day at the latest, the employer must inform in writing the works council and the committee (depending on whether the procedure is for the election of a council and/or a committee), or, in the absence of such bodies, the trade union delegation, about the following elements:
The demarcation of the technical operating unit(s) (TOU);
The number of workers by category (blue-collar workers, white-collar workers including executives and managerial staff, young workers) who are employed by the company on day "X-60";
The functions (title and content) of the managerial staff, and an indicative list of the persons performing these functions;
The functions of the executives and an indicative list of the persons performing these functions (only in the context of a procedure for the election of a works council, and unless the company employs less than 30 white-collar workers on the day the information is given);
- The date of posting of the notice announcing the date of the election (day "X") and the date considered by the employer for the elections (day "Y"). The employer must provide this information in a document that is drafted in accordance with the statutory template. In any case, even in the absence of a council, committee and trade union delegation, the employer has to communicate this document to the workers by means of a posting within each section and division of the company or by electronic means (e.g. via the intranet provided that all workers have access to it during their normal working hours).
In addition, the employer must communicate this information via the web application of FPS Employment, or otherwise must directly send a copy of the posted document to the headquarters of the representative workers' organisations.
Interim workers in your company? Monitor their periods of employment!
As we explained in Eubelius Spotlights June 2019, certain interim workers will be allowed to vote within the user's organisation. This is the case for interim workers who fulfil both of the following conditions:
Between 1 August 2019 and day "X" (inclusive): have been working for the user for at least three months without interruption, or otherwise for a total of at least 65 working days; and
- Between day "X" and day "X+77" (inclusive): have been working for the user for a total of at least 26 working days.
So the first of these reference periods has already started! Hence, it is high time to start keeping an eye on the employment of interim workers in your company.
Be aware of the General Data Protection Regulation
The General Data Protection Regulation, better known as GDPR, dates back to just before the 2016 Social Elections, and it became directly applicable throughout the European Union two years later, on 25 May 2018. Thus, the 2020 Social Elections are the first for which the General Data Protection Regulation must be complied with.
During the social elections procedure, large amounts of personal data are processed. Just think of the different lists (voters, candidates, members of the managerial staff, executives, witnesses, etc.), convocation letters and ballots. Some of these documents may also contain sensitive data, such as data revealing trade union membership or a political opinion. The GDPR provides for additional protection for such sensitive data.
The GDPR must be complied with in all processing of personal data. Here we share with you our 10 tips for GDPR-compliant social elections:
Carry out a data protection impact assessment.
This is a mandatory procedure that aims at assessing whether the intended processing of personal data involves a risk for the rights and freedoms of individuals, and how these risks can be managed. In this assessment, keep in mind that some steps in the electoral procedure involve the processing of sensitive data (think of the candidate lists and the voting results, for example).
Check whether the intended processing is prescribed by the Social Elections Act, or whether the processing is at least necessary for the organisation of social elections according to the legal procedure.
Determine in advance the purposes of the processing and comply with them.
As a rule, the data you use in the framework of the social elections can only be used for that purpose. If after the elections you want to use the data for different purposes, you must inform the workers.
Less is more: do not process more data than necessary. The Social Elections Act specifies exactly which data you need to process.
Do not keep the data longer than necessary.
The Social Elections Act also determines how long you can keep personal data. Nevertheless, there might be valid reasons within your company to provide for a longer retention period. In that case, the reasons for that longer retention period should be well documented.
Be extremely careful with the dissemination of personal data.
Think of this principle, for example, when you choose to use electronic means to communicate the provisional voters lists to your workers. Do not e‑mail these lists to your workers, and do not put these lists as such on the company's (even internal) website. Prefer communication via a closed electronic platform or a secured intranet that is only accessible to workers. (Source: Opinion no. 156/2018 of 19 December 2018 of the Data Protection Authority, and the Brochure on Social Elections 2020 from FPS Employment)
Take technical and organisational measures to protect data.
Make sure that the secrecy of the vote is guaranteed. If there will be electronic voting within your company, then check in advance which guarantees are offered by the supplier of the electronic voting system.
Be transparent about the processing which you are carrying out, and provide sufficient information.
Check whether your existing HR information documents (e.g. internal privacy policies or work regulations) contain information on the processing of personal data in the context of the social elections procedure. When communicating notices with personal data, make sure to mention the relevant section(s) of the Social Elections Act, and to refer to the GDPR. Inspiration can be found in the example given by FPS Employment for the communication of the notice on day "X": "These data are published as a part of the information duty pursuant to section 14 of the Social Elections Act of 4 December 2007. As this notice contains personal data, the General Data Protection Regulation of 27 April 2016 (GDPR) applies. The company processes the personal data only for the purpose for which they were collected and only as long as necessary. (Source: Brochure on Social Elections 2020, FPS Employment – free translation)
Complete your company's record of processing activities.
Make sure that this record also contains specific information on all processing of personal data in the framework of the social elections procedure.
Think about the GDPR when contracting with service providers in the framework of the organisation of the social elections.
Make sure that these contracts sufficiently guarantee the protection of personal data.
These 10 tips lead us to the conclusion that you would most probably want the person within the company who is responsible for the processing of personal data to be involved with the organisation of the social elections.
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.