Social elections 2024: it is time to work out a strategy

The obligation to set up a health and safety committee (HSC) and/or a works council (WC) depends on the average number of employees habitually employed in the company. If a company habitually employs at least 50 workers on average, an HSC has to be set up. If a company habitually employs at least 100 employees on average, both an HSC and a WC have to be set up. 

We recommend companies with an average employment of around 50/100 employees to follow-up on the current workforce numbers within the company, and where possible to focus on hr personnel management in 2022/2023. 

The two important questions are the following: 

• On which level must the average number of employees be calculated? This is determined by the technical business unit (TBU). 
• How does one calculate the average number of employees habitually employed in the TBU? 

With regard to the social elections, the company is defined as a TBU. The company, or TBU, is thus not a synonym of legal entity (like an nv/sa or bv/srl). In order to determine the TBU, it is necessary to take into account economic and employment criteria. The social criteria are predominant. 

These social and economic criteria are not set up by law, thus it is necessary to have a look at the criteria retained in the relevant case law. 

For example, indicating economic autonomy: 

• Separate management
• Own accountancy 
• A different social secretariat 
•   ….

Social autonomy is mainly characterized by: 

• Own personnel/HR policy 
• Own remuneration policy
• Use of different languages
• Own social activities (e.g. personnel parties, personnel newspaper) 
• No social contacts between employees
•  …

Several situations can then occur:

• The TBU is equal to the legal entity. This is the most common and simple situation. 
• The legal entity contains several TBUs.
• Several legal entities form a single TBU.

The employer has to decide which TBU will have to establish an HSC and/or a WC. However, the workforce and the trade unions can challenge the employer’s decision. In order to prevent any disagreement, it is important to think the decision through carefully. 

We therefore strongly advise employers to take a current ‘snapshot’ of the company and to examine whether a number of different TBUs might exist. With regard to the social elections of 2024, it could be useful to clarify a certain number of points in your company or to restructure the company (merger, demerger, …). 

The obligation to set up an HSC and/or a WC depends on the average number of employees habitually employed in the TBU. 

In order to calculate this average number for the social elections of 2024, one should consider (insofar the law does not change) the number of employees usually employed by the company on average from 1 October 2022 to 30 September 2023. 

We advise you to chart the current workforce numbers within your company. It is indeed possible that the threshold of 50 or 100 employees is just reached or not, so that a focused personnel management in 2022/2023 could be worth considering to avoid an obligation to set up an HSC or a WC. 

In order to calculate the number of employees habitually employed, it is important to know which employees will have to be taken into consideration: 

• Long-term disabled employees must be taken into account, as well as employees whose employment contracts have been suspended. 
   
• Temporary workers have a specific position. Temporary workers do not count for the calculation of the usually average employment at their own employer, the temporary employment agency. In some cases, temporary agency workers do count towards the user's usual average employment, except when they replace a permanent worker of the user. The user must keep a register for one quarter (the reference quarter) of the temporary agency workers working for him.

  Temporary agency workers employed by the company have to be registered and taken into account during the second quarter of 2023 (between 1 April 2023 and 30 June 2023). Neither the number of temporary agency workers during the first quarter of 2023, nor that of the third and fourth quarters of 2023 influence whether or not the establishment of an HSC or a WC is mandatory. You do not need to keep a register of temporary workers if the WC establishes by unanimous statement in the minutes that the threshold of 100 employees has been exceeded. 
   

• If your company is internationally active, it is important to know whether employees who are seconded abroad need to be counted.  In principle, if they have employment contracts with the Belgian company and provided they do not work abroad on a regular basis, they should be counted. However, depending on the specific situations of the employees working abroad, they could be considered as habitually working abroad, in which case it could be argued that they ought not to be counted.  

During the social elections, executive and managerial staff is a special category. The executive and managerial staff is not electable, nor entitled to vote and is the staff from which the company chooses its own employer’s representatives on the HSC and the WC. 

The notion of executive and managerial staff is strictly defined by law. It concerns: 

• People who are charged with the day-to-day management of the company, who have the power to represent and commit the employer (level 1);
• Employees who are immediately subordinate to level 1 and insofar as they also perform day-to-day management tasks (level 2).
• Employees at the third level in the company may in no circumstances be considered as executive and managerial staff for the purposes of the social elections.

Whether an employee is executive and managerial staff must be examined considering his/her actual function. Day-to-day management is not to be understood in the sense of corporate law, but must be seen as the daily, effective, independent and continuous management of the company. 

Strategically, the more employees you are able to define as executive and managerial staff, the fewer protected employees you will have within your company. Furthermore, it could be beneficial to already consider the question of who you want to represent the employer within the HSC and the WC. 

In this context, the company’s organizational chart can play an important role. 2022/2023 is the perfect moment to draw up or reschedule this chart in tempore non suspectu by laying down clear job descriptions or creating an executive committee or a management team. 

In order to be prepared in the best possible way for the 2024 social elections, we advise you, as a first step, to draw up an organizational chart, and to ask yourself the following questions: 

• What is/are the TBU(s)? 
• How many employees are habitually employed on average in the/this TBU? 
• Who could be considered as executive and managerial staff? 

Once you have made this organizational chart, you will have a better understanding of, on the one hand, your obligation regarding whether or not to set up multiple WC and HSC for the next social elections and, on the other hand, the issue of the executive and managerial staff. 

In case you wish, you can still make some adjustments, more specifically by: 

• reorganizing or clarifying the structure of your organization or company (e.g. by dividing the TBU or, on the contrary, by merging several TBUs)
• orientating your workforce policy in 2022/2023 (e.g. by employing fewer temporary workers during the 2nd quarter of 2023, postpone hiring, to relate new workers to one TBU instead of another, etc.) 
• setting up an organizational chart, drafting job descriptions, or setting up a management committee, or an adjustment of these data.