The next social elections are slowly approaching. They will take place between 13 May 2024 and 26 May 2024. These dates may seem a long way off, but the start of the procedure, on day “X-60”, is getting closer. The second contribution in our series on social elections deals with this first stage, the “X-60” day notice. We also draw your attention to potential disputes over the determination of the technical operating unit. Finally, we take a brief look at the concept of managers and executives.
Day X-60: first formalities
The “pre-electoral phase” officially begins on day X-60. The actual electoral phase lasts from day X (the date of posting of the notice announcing the date of the election) to day Y (the date of the election). Depending on the actual date of the social elections, day X-60 will be between 15 and 28 December 2023.
On day X-60, the employer must inform the Works Council and the Committee for Prevention and Protection at Work (CPPW) – or, in the absence of such bodies, the trade union delegation – of:
- the identification (and the number) of technical operating unit(s) (TOU);
- the number of workers by category (blue-collar workers, white-collar workers, including executives and managerial staff, young workers) working in the company on day X-60;
- the functions of the managerial staff;
- the functions of executives (only in the context of a procedure for the election of a Works Council and unless the company has fewer than 30 employees on the day the information is given); and
- the date of posting of the notice announcing the date of the election (day X) and the proposed date of the election (day Y).
Watch out – This information must be provided in writing by means of a document drawn up in accordance with the statutory template. If there is no Works Council, CPPW or trade union delegation, the employer must communicate this document to the workers by posting it in the various sections and departments of the workplace or by electronic means (provided that all workers will then have access to this document during normal working hours). The employer must also provide this information via the Federal Public Service for Employment’s web application.
Below the threshold, out of trouble?
Legally, a company must start the electoral procedure if it meets the conditions for organising social elections. In our previous contribution, we mentioned that a social consultation body (Works Council and/or CPPW) only needs to be set up if the company employs a certain minimum number of workers during the reference period.
If this threshold is not reached, the procedure does not need to be initiated. Consequently, the employer does not need to complete, post or communicate the X-60 day notice.
Our tip – If bodies have been set up in previous social elections, we recommend informing these bodies that the threshold is no longer reached. This is part of good social consultation and helps to avoid disputes. If the number of workers in the company falls below 100, but is still above or equal to 50, the procedure will have to be initiated for the election of a CPPW, which will then exercise certain powers normally attributed to the Works Council.
Disputes about the technical operating unit: who will have the final say?
The first written communication regarding the TOU on day X-60 will then lead to consultation of the Works Council, the CPPW or, in the absence of such bodies, the trade union delegation, particularly concerning the number of TOUs envisaged. Effective dialogue limits the risk of disputes following the employer’s final decision on the delimitation of the TOU. This decision must be taken no later than day X-35.
However, the employer’s decision on day X-35 can still be appealed by the workers concerned and the representative employee organisations. Such appeal must be lodged with the Labour Court by day X‑28 at the latest.
What’s next? – The Labour Court will decide within 23 days of the appeal being lodged. Its decision is not open to further appeal.
Managerial staff and executives, all in the same boat?
On day X-60, the employer must already communicate the functions of the managers and executives (where applicable). Please note that these concepts imply very different roles in the social consultation bodies and should not be confused.
The employer appoints the people who will represent the employer in the social consultation bodies from among the members of the managerial staff. These people therefore cannot stand as candidates in the social elections and do not have the right to vote.
Executives, on the other hand, have the right to vote and may stand as candidates in the social elections. They will, however, have their own representation among the employee representatives, provided that there are at least 15 of them in the company on day X.
To avoid – The function of managerial staff is incompatible with the functions of the prevention advisor and the trusted person. This incompatibility potentially reduces the number of persons who could be part of the employer’s delegation. So, make sure you don’t forget someone with a managerial function to ensure that you don’t run out of representatives.
To follow
In our next contribution, we will be highlighting the dreaded "occult" period, which will begin in January 2024.
The Eubelius Social Elections Team is ready to help you through the 2024 social elections with legal advice, support with negotiations and assistance, as well as representation in court in the event of litigation.
