Next year, in the course of the month of May, social elections for the designation of the personnel representatives at the committee for prevention and protection at work and at the works’ council will have to be organized again.
Social elections are organized at the level of the “technical exploitation unit” (hereafter “TEU”). This is a notion, which, originally, has been introduced by the legislator in particular for the social elections.
The works’ council has to be installed in the TEU’s, where normally on average at least 100 workers are employed.
In TEU’s, where normally on average at least 50 workers are employed and where, at the occasion of the social elections of 2012 a works’ council has been or should have been installed, the works’ council has to be maintained. In these TEU’s, the tasks of the works’ council are assumed by the committee for prevention and protection at work and therefore, no separate elections for the personnel representatives at the works’ council have to be organized.
In the TEU’s, employing usually on average at least 50 workers, the committee for prevention and protection at work is established.
The organization of the social elections is a complex matter and the preparation thereof has to be started several months in advance.
The first preparatory steps in this procedure have to be made in the course of the fourth quarter 2015. Also for the determination of the number of personnel (which is the essential issue for determining whether or not social elections have to be organized) the 2015 situation is decisive.
So, the social elections are not the the least of our worries anymore. Quite to the contrary, appropriate measures may have to be taken already now.
The employer is responsible for organizing the social elections. So, he has to take the initiative to start off the social elections procedure.
If he fails to comply with these obligations, penal or administrative fines may be imposed on him.
The penal fine may vary from 600.00 EUR to 6,000.00 EUR, possibly to be multiplied by a figure, equivalent to the number of workers employed, it being understood that the total penal fine shall not exceed 100 times the maximum fine. Consequently, the maximum penal fine amounts to 600,000.00 EUR.
The penal fine may vary from 600.00 EUR to 6,000.00 EUR, possibly to be multiplied by a figure, equivalent to the number of the workers employed, it being understood that the total penal fine shall not exceed 100 times the maximum fine. Consequently the maximum penal fine amounts to 600,000.00 EUR.
The same principles apply to the administrative fine, which may vary from 300.00 EUR to 3,000.00 EUR: possible multiplication by a figure equivalent to the number of workers employed, but in any event not exceeding 100 times the maximum amount; as a result, the maximum administrative fine amounts to 300,000.00 EUR.
The first issue, arising in connection with the organization of the social elections, is the determination of the TEU, the level at which the social elections are organized.
In principle, the TEU corresponds to the legal entity of the employer (limited liability company, …).
But, that does not always have to be the case:
- depending on the circumstances, several separate legal entities may have to be joined into one single TEU. It happens that one business activity is split into several legal entities (as an example: the production in one legal entity and the commercialisation of the products in another legal entity) in order to avoid social elections. It is not exceptional that such a manoeuvre is successfully challenged by the trade unions and that the employment tribunal decides that the split entities have to be joined anyway into one single TEU. So, such a splitting may not be the adequate solution to avoid social elections;
- likewise, it is not excluded that one legal entity may be split into several TEU’s; as a result, the possible number of protected workers may increase. The workers who are a candidate for the elections, have a special protection status with respect to termination of the employment contract, even if they have not been elected).
In any event, the composition of the TEU may offer some room for manoeuvring for the employer.
For the calculation of the number of employees (normally on average at least 50 or 100), reference is made to the four quarters of 2015. The number does not refer to the number of persons, but to fulltime equivalents. Therefore, the number of part-time workers, whose number of working hours is less than three fourths of a fulltime working schedule, as applicable in the company, is divided by two.
The employees, replacing a permanent worker pursuant to a replacement contract, are not taken into consideration.
For temporary workers a special arrangement applies: during the 4th quarter 2015, the employer must hold a register, in which he has to record a number of data concerning the temporary workers, who are working for him during the 4th quarter 2015. These temporary workers have to be taken into consideration, except if they are replacing a permanent worker of the employer, whose employment contract has been suspended.
When the limit of the number of workers (50 or 100) is nearly reached, it may be advisable to limit the call on temporary workers during the 4th quarter 2015 as much as possible.
As the procedure for the organization of the social elections progresses, the steps to be taken shall be explained in more detail on our website in a special heading “social elections”.
Needless to say, we will be pleased to remain at your disposal for any additional information or assistance you may wish.
