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09.05.19 SOCIAL ELECTIONS: NEWS ON TEMPORARY AGENCY WORKERS

Employment
May 9

The social elections will take place next year between 11 and 24 May 2020.

There are two important new rules about temporary agency workers that can have a significant impact on the organization of these elections.

1.     Temporary agency workers are taken into account when calculating the usual average employment

The usual average employment rate determines whether your company has to organize social elections for the Health and Safety Committee (threshold: 50 employees) and/or the Works Council (threshold: 100 employees). In this calculation, not only the permanent employees must be taken into account, but also the temporary agency workers that you employ as a user. Note that only the temporary agency workers for exceptional work and temporary increase of workload must be taken into account, and not those who replace a permanent employee. In the latter case, there would indeed be a double calculation.

As was already the case during the previous elections, every user of temporary agency workers must keep a specific register of temporary agency workers for a certain reference period, even if the user is not required to organize social elections. The average of temporary agency workers is calculated by dividing the number of calendar days on which a temporary agency worker is included in the register during the reference period by 92. If the temporary agency worker works in a working regime of less than 3/4 of a full-time work schedule, his or her employment only counts for half of the time.

All those rules remain the same as during the previous elections.

What has changed, however, is the reference period during which the calculation must be made. The reference period is the current quarter, i.e. the period between 1 April and 30 June 2019. For the previous elections, this was the fourth quarter of the year preceding the social elections.

There is one exception to the obligation to keep the register. If the Works Council declares in its minutes, unanimously and before 30 May 2019, that the threshold of 100 employees in the company is exceeded, the company does not have to keep a register for temporary agency workers.

To do:

  • Monitor the employment of your temporary agency workers between 1 April and 30 June 2019 and, if possible, adjust your recruitment policy if you approach the threshold of 50/100 employees. 
  • If the company employs more than 100 employees, make sure that the Works Council confirms this in time (before 30 May 2019) and includes this in the minutes of the next meeting. In this way, you avoid keeping a specific register of temporary workers.

2.     Temporary agency workers have the right to vote (under certain conditions)

The biggest change is that temporary agency workers can vote in the social elections of the user, provided that they meet certain cumulative conditions:

  • In a first reference period (between the 1st day of the 6th calendar month prior to day X and day X), the temporary agency worker must be continuously employed by the user for at least 3 months, or a total of 65 working days in this 6-month period; and
  • In a second reference period (between day X and day Y-13), the temporary agency worker must be employed by the user for at least 26 working days.

Therefore, if a company organizes social elections on 11 May 2020, the first reference period starts on 1 August 2019 and ends on 11 February 2020 and the second reference period starts on 11 February 2020 and ends on 28 April 2020.

Temporary agency workers have the right to vote, regardless of whether they are still employed by the user on the date of the elections.

Finally, temporary workers are still unable to apply as candidates for the user.  

To do:

  • As of August 2019, you should record during the reference periods how long certain temporary agency workers have been working for you. This is important for the correct preparation of the election lists. When doing so, consider the fact that, since the temporary agency worker must meet both employment conditions, he or she will not have the right to vote if he or she meets only one of the two conditions.
  Employment, Pensions & Benefits