Covid-19: Suspension of the social elections of 2020 regulated by law

Yesterday 23 April 2020, Belgian parliament approved a draft law suspending the ongoing procedures for the 2020 social elections. With this parliamentary approval, the advice no. 2160 of the National Labor Council (NLC) of 24 March 2020 is confirmed by law and the legal and technical consequences thereof are further regulated.

The main principles of this new regulation are as follows:

1.    The ongoing election procedures are suspended collectively from day X + 35 (depending on the election date chosen, this day was situated between 17 and 30 March 2020) until a date to be determined by Royal Decree. The NLC already suggested that the postponed social elections should take place between 16 and 29 November 2020, but this has yet to be confirmed.

The lists of candidates could therefore still be submitted by day X + 35 at the latest, but all electoral acts and proceedings from day X + 36 have been halted ('frozen') and postponed to a date to be determined. Electoral acts and proceedings that, despite the aforementioned collective suspension, were nevertheless continued from the original day X + 36 are null and void. Only if on day X + 35 no candidate list was submitted for any personnel category, the electoral procedure could still be completely stopped after day X + 35 by uploading an official report of cessation.

2.    The original election date (day Y) will be retained (depending on the election date chosen, this will be between 11 and 24 May 2020) as reference date for the examination of the conditions of candidacy, including for the substitute candidates.

3.    The existing consultative bodies (works council and committee for prevention and protection at work) will continue to operate until the (postponed) date of the installation meeting of the new consultative bodies to be elected (on the basis of the election period proposed by the NLC, the date of this installation meeting will be situated between 31 December 2020 and 13 January 2021). The mandates of the employees’ representatives in the existing consultative bodies are extended accordingly, so that the employees’ representatives are protected against dismissal until this date.

4.    As regards the protection against dismissal of (candidate) employees’ representatives, the approved draft law provides the following. In principle, the candidate employees’ representatives that are protected against dismissal are already known to the employer, since the candidate lists for the different personnel categories had to be submitted by day X + 35 at the latest. Nevertheless, in certain cases it is still possible to replace the candidates on the original candidate list until day X + 54 and day X + 76. Since the election procedures are suspended from day X + 36, the possibility to replace candidates on days X + 54 and X + 76 is also postponed.

To avoid employers being faced with an 'extended occult period' for these replacing candidates, this occult protection period is also temporarily suspended. For the replacing candidates, the period of dismissal protection will start again from the 36th day prior to the date of resumption of the suspended election procedure. As soon as the dates of the new election period and the new electoral calendar are known, companies are therefore advised to include this new "occult period" in their agenda (based on the election period proposed by the NLC, this new occult period would start between 18 and 31 August 2020).

5.    Employees who are protected against dismissal on the basis of their candidacy or election during the previous social elections are entitled, in case of irregular dismissal and if their application for reintegration into the company is rejected, to both a fixed and a variable indemnity. Where the fixed indemnity is calculated on the basis of the employee's seniority, the variable indemnity is equal to the employee's salary until the end of the employee’s mandate as employees’ representative.

Taking into account the extension of the mandates of the employees’ representatives in the existing consultative bodies, the adopted law also regulates the consequences of this extension for the calculation of the variable indemnity. Hereby, a distinction is made depending on whether the irregular dismissal took place before or after 17 March 2020:

1. Dismissal before 17 March 2020: the variable indemnity is calculated in function of the originally fixed election date as announced on day X. In that case, the variable indemnity will be equal to the salary due until a fictive installation date of the new consultative body which is no later than 45 days after the original election date (depending on the original election date, this fictive installation date is situated between 25 June 2020 and 8 July 2020).
2. Dismissal as from 17 March 2020: the variable indemnity is equal to the salary due during the entire period of suspension and until the installation date of the new consultative bodies (based on the election period proposed by the NLC, this installation date would be situated between 31 December 2020 and 13 January 2021).

It is now awaiting the Royal Decree determining the end date of the suspension period and the arrangements for the resumption of the electoral procedure. Obviously, the exact resumption date will depend on the further evolution of the COVID-19 virus.