The National Labour Council has confirmed its initial proposal to hold the social elections between 16 and 29 November 2020
The Act of 4 May 2020 suspended the ongoing social elections procedure due to the Covid-19 pandemic. The procedural steps up and including day X + 35 still had to be completed. However, all procedural steps falling after X + 35 were postponed until an unspecified date.
The new election dates, and therefore also the dates for resuming the procedure, have to be determined by Royal Decree.
The Minister of Work, who is in the process of preparing such a Royal Decree, asked for the National Labour Council’s advice in this respect. On 30 June 2020, the National Labour Council (NLC) issued an opinion that has confirmed its earlier proposal to set the new election day (day Y) between 16 and 29 November 2020.
Moreover, in its new opinion, the NLC has also proposed other measures to be included in the Royal Decree, such as: the option to deviate from the automatic incorporation of the originally chosen day Y into the new election period, the option to adapt the timetable of the election day, and a solution for the deadline for electronic voting that has already expired.
We have listed the main features of the NLC’s opinion below.
1. New election period
The NLC has confirmed its initial proposal of 24 March 2020 to set the new election date (day Y) between 16 and 29 November 2020.
This new day Y will be the benchmark for a new electoral calendar starting from day X + 36, the day on which the election procedure will automatically resume.
On the basis of a new election day between 16 and 29 November 2020, the electoral procedure will thus resume at the earliest on 23 September 2020 and at the latest on 6 October 2020.
After the suspension, companies will also have to set a new election calendar for the remainder of the social elections’ procedure on the basis of the new day Y. Check out our new calendar tool (version ‘after suspension’) on our Social Elections webpage, which is based on an election date between 16 and 29 November 2020.
2. Exception to the automatism: option to choose the new day Y
In its first opinion of 24 March 2020, the NLC advised that employers could not freely determine the new day Y within the period of 16 until 29 November 2020, but that this new day Y would follow automatically by putting the originally chosen date into the new period.
In its new opinion of 30 June 2020, the NLC has stated that this principle of automatic date-setting is still the main rule. However, to avoid any adverse consequences, which could occur in some situations, the NLC has advised that the existing consultative bodies can deviate from this automatic date-setting by a decision taken in accordance with the majority rules included in their house rules. If the company does not have any consultative body, then the employer cannot deviate from the automatically determined election date.
3. Option of setting a new timetable for the election day
In principle, the timetable for the election day as set on day X will remain unchanged. However, the NLC has recognised that, in light of the current Covid-19 pandemic, it should be possible for companies to ensure that the social elections take place in a safe and hygienic environment. Since the social elections might take longer due to these safety and hygienic measures (cleaning the voting booths in between each use, keeping one’s distance, etc.), companies should be able to adapt the originally chosen timetable.
The NLC has proposed that the existing consultative bodies should be able to adapt the timetable by a decision taken in accordance with the majority rules included in the house rules, which would be based upon two conditions: (i) in no way can the consultative bodies decide to lower the total number of hours that was initially set for the elections, and (ii) the elections must take place during the normal working hours. If the company does not have any consultative bodies, then the employer itself can unilaterally amend the timetable on the basis of the same two conditions.
4. Internal and external communication
The consultative bodies or, in their absence, the employer, should communicate the new electoral calendar, the new day Y and, if applicable, the new timetable of the social elections both internally and externally.
For the internal communication to the employees, the consultative bodies or the employer must execute a new posting (on the same places as the initial posting of the social elections date) at the latest 7 days before the date of resumption of the procedure. The NLC has advised that the Employment Ministry provides a compulsory template form for this communication on its website.
For the external communication, the above information must be delivered simultaneously to the representative employee organisations and executives (if applicable), either electronically (via a web application) or by letter to these employee organisations and to the Employment Ministry.
5. Postponing of credit hours for the training of employee representatives
Certain sectoral CBAs provide for rules to determine the credit hours available to the employee representatives for training. The NLC has noted that, in some sectors, those credit hours normally expired in May 2020 but that the training courses could not be organised in time due to the Covid-19 crisis.
Therefore, the NLC has advised providing for the option of postponing these credit hours in accordance with the postponement of the social elections.
6. Electronic voting
Finally, the NLC has also acknowledged a potential problem for companies who did not decide on the option of electronic voting on the original day X, but who now want to have this option due to the Covid-19 pandemic. In principle, any decision to vote electronically had to be communicated at the latest on day X. However, since companies could not have foreseen the Covid-19 pandemic and its consequences for the social elections, the NLC has asked the legislator to amend the Act of 4 May 2020 so that agreements concerning electronic voting can still be validly concluded with all representative employees’ organisations that have put forward candidates for the employee category concerned and this is as soon as possible after day X+40 and at the latest on day X+56.
7. New Royal Decree executing the Act of 4 May 2020
Everyone now waits for the Royal Decree that will execute the Act of 4 May 2020 in light of the NLC’s proposals. The NLC has asked the Employment Minister to issue this Royal Decree as soon as possible, and at the latest by mid-August 2020.
We will keep you updated!
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