The beginning of spring also heralds the final stretch before the date of the social elections. All employers will have already completed several formalities as part of this procedure. But even the most diligent companies will still need to take stock of what still needs to be done in the run-up to the social elections day and to prepare for the post-election period: what remains to be done before the social elections day, what happens on the big day, and what steps will need to be taken after the elections? This contribution takes a practical look at these issues.
Approaching the elections, fasten your seatbelts
Day X+35: end of the occult period?
In our previous contributions, we drew your attention to the dangers of the “occult period”, during which candidates for social elections are already protected against dismissal even though their names are not yet known.
On day X+35, i.e. between 19 March 2024 and 1 April 2024, employers will have been able to see the lists of candidates and will therefore finally know which employees are protected against dismissal.
However, in certain cases, the representative organisations can still replace a candidate originally nominated until day X+76, i.e. between 29 April 2024 and 12 May 2024. Dismissal therefore remains risky until that date, and potentially very costly if it turns out that you have dismissed a candidate nominated following a replacement.
Day Y: anything left out?
Once the list of candidates is known, the employer can start with the final practical formalities in preparation for day Y: final posting of the lists of candidates and allocation of numbers, preparation of the ballot papers, tidying up of the electoral lists (e.g. deletion of the names of employees who are no longer part of the workforce) and inviting voters to attend.
Elections at the next turn
Elections: the end of formalities?
The voting will take place on day Y, i.e. between 13 May and 26 May 2024. However, in certain situations, electoral operations will be held over several days. They will, in all cases, conclude at the scheduled time.
The closure of the ballot certainly does not mark the end of the formalities and procedures to be completed. The crucial first step following the vote is the ballot counting. The election result is then recorded in the election minutes. This is a key step requiring great caution. Indeed, an error during the counting process could risk invalidating the election result.
No later than the day following the closure of the electoral operations, the minutes must be sent to the FPS Employment by the president of the polling station. In practice, this is usually done by means of an upload in the FPS Employment’s web application. A copy of the minutes must also be sent to the employer. No copies need to be sent to the representative employee organisations if the minutes were uploaded in the web application.
Display of results: impact on protection against dismissal?
No later than day Y+2, i.e. between 15 May and 28 May 2024, the employer must ensure that the election results are displayed in the same place where the notice announcing the election date was displayed. The notice must remain displayed for 84 days after day Y and will be kept on record by the employer throughout the entire term of the elected bodies.
The display of the results has no influence on the duration of the protection against dismissal for the elected candidates; they will be protected until the day on which the elected candidates are installed in the next elections. It is with regard to non-elected candidates that the posting of the results plays a role.
A non-elected candidate who was already a non-elected candidate in the previous elections will only be protected for two years from the date on which the election results are posted. A non-elected candidate who is standing for the first time will enjoy the same protection as an elected candidate.
In the event of an appeal: what about social consultation?
Until day Y+15, which is within 13 days following the announcement of the results, all parties involved (employer, workers, unions) will have the opportunity to file an appeal with the labour tribunal to contest the election results. Other reasons may also justify an appeal.
During the appeal process, the existing bodies will continue to carry out their functions pending the decision of the labour tribunal, or the labour court in the case of an appeal of the tribunal’s decision.
After the elections, eyes on the horizon
Installation meeting
Once the members of the Works Council and the Committee for Prevention and Protection at Work (CPPW) have been elected, these bodies must be installed for social consultation over the next four years.
Unless otherwise stipulated in the internal regulations, the installation meeting must be held within 30 days of the expiry of the appeal period (in principle, 45 days after the date of the elections) or, in the event of an appeal, within 30 days of the final court decision validating the elections.
Please note that the installation meeting of the new bodies will officially mark the end of the protection period resulting from the previous membership status in the Works Councils or the CPPW. However, if members were candidates again, their protection would continue.
Internal regulations
The installation meeting is an opportunity for the newly elected bodies to draw up their respective internal regulations.
This fundamental document determines how the body will operate over the next four years. A forward-looking employer should therefore take care to assess the operation of the bodies during the previous term, and to prepare a draft that anticipates any practical issues and difficulties in the operation of the bodies in the light of the company’s needs and specific features.
In addition to the information that must be included, it is advisable to provide for the possibility of organising remote meetings, establish quorum rules and a suitable decision-making process (avoiding unanimity, for example), the possibility of replacements, a reminder of the rules on confidentiality, etc.
Economic and financial information
Within two months of the installation meeting, the basic economic and financial information must be communicated to the Works Council. Once the information has been communicated, an extraordinary meeting must be scheduled to analyse and discuss it. This meeting must take place within two months of the information being provided. Works Council members must have at least 15 days between the communication of the information and the holding of the extraordinary meeting. The meeting must be scheduled to last eight hours. However, this long duration will not always prove necessary.
In practice, and time permitting, it is advisable to hold this extraordinary meeting on the same day as the first ordinary meeting, taking care (1) to attach the basic information to the notice of meeting, and (2) to draw up a separate set of minutes for each of these meetings.
For companies whose financial year ends just before the summer, it will also be useful to take account of the timing of the closing of the company’s accounts in order to provide the Works Council with up-to-date information. In this case, the auditor and the accounts department should be notified well in advance so that they can be involved in the preparation of this information. The basic information should also be certified by the auditor.
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.
