Newsletter 2023 – 03

1 Office news

The 160 participants in the venue and online reflected on another successful edition of Spitsuur HR.
You can here see some impressions

2 Publications

3 Social elections: usually an average of 50 or 100 employees

Companies that typically employ an average of 50 workers during the reference period must initiate the social elections procedure to appoint the employee representative to a committee for prevention and protection at work. Companies with an average of at least 100 workers must also hold elections to appoint this representative to the works council.

The counting of the number of “employees” is done in a special way.

Action point for employers: If you believe your company is approaching the 50 or 100 employee mark, you can make choices today that will determine whether or not you should initiate the social elections process. In that case, be sure to perform the exercise in a timely manner to determine your current number.

The decision to hire an additional employee or a temporary worker in the coming period, or to outsource the work to a contractor or supplier instead, may determine whether you need to initiate the social election procedure.

1. The number of “employees” in a reference period

Not only the employees you employ are included in the assessment of the number 50 or 100, temporary workers are also charged.

Furthermore, the count is done on the basis of the number of employees who were employed in a certain reference period and in a special way.

2. Counting your own employees

All employees are included in the assessment of the number of employees, including your long-term sick leave or other employees whose contract performance has been suspended. In principle, employees who work for you abroad should also be taken into account (for example, you employ someone who works for you in the South Asian market to recruit customers).

Several categories are considered equivalent to employees: students, employees placed in your company for vocational training by the VDAB (Flemish Employment Agency), and researchers from the Research Foundation - Flanders (FWO). Employees employed under a replacement contract are excluded.

For all these employees, you must count the number of days they were bound to you with an employment contract during the period from October 2022 to September 2023. Divide the result by 365.

Employees whose actual hours are less than 3/4 of a full-time schedule should only be counted for half their total (i.e., divide by 730 instead of 365). An employee who gradually returns to work at a rate of 50% therefore only counts for half their total.

Example: An employee initially works part-time for 100 days during the reference period; afterward, they are switched to a full-time contract. This employee's full-time equivalent will be 100/365 + 265/(365X2) = 0.64.

3. Counting the temporary workers

Certain temporary workers must also be included in the calculation to determine whether the standard of 50 or 100 has been achieved.

However, not all temporary workers: temporary workers who replace an employee whose employment contract has been suspended should not be included in the count.

A different – ​​and shorter – reference period applies to temporary agency workers. The calculation is based on the average number of days the temporary worker was made available to you during the period from March 1, 2022, to June 30, 2022.

For these temporary workers, you must divide the total number of days by 91. Here too, the temporary worker with an hourly schedule of less than 3/4 of a full-time employment only counts for half.

4. Points of attention

A significant number of people who may perform services for you are not taken into account when determining whether you must organize social elections:

• Self-employed persons who provide services for you (managing director, independent contractors, etc.)
• Employees who are employed by another employer and provide services to you under a service agreement (e.g., employees of a sheltered workshop working in your enclave, the external cleaning crew, etc.)

If you require additional staff in the period April – June 2023:

• will a choice to meet this need with a temporary worker result in you being deemed to employ 1 additional employee on an annual basis;
• If you choose an employee that you hire yourself during this period, this will result in him counting for only 0.25 on an annual basis;
• the use of a subcontractor or an external supplier will not lead to an increase in the number of employees for the count for the social elections.

5. More than 50/100 employees and yet no social election procedure is initiated

In some situations, you will meet the standards for establishing a works council and/or committee, but you will not need to initiate the procedure.

"Usually" average number of employees

The number of employees you employ in your company may decrease significantly over the course of the year. If you can demonstrate that this decrease is structural, and that as a result, you have fallen below 100 or 50 employees at the time you should have initiated the social elections procedure, you may decide not to initiate the procedure for electing a works council, works council, or committee, respectively. If you dispute this, the employer must demonstrate that the workforce will not increase again quickly in the future.

Cessation of (part of) the company's activities

If the employer decides to (partially) close down by ceasing all or some of the company's activities, thereby falling below the threshold of 50 or 100, respectively, you can ask the inspector/district head of the Social Law Inspectorate to suspend the start of the social elections procedure (for the works council and committee, respectively). This permission is granted after a special procedure. The suspension is valid for one year. The existing bodies will continue to function.

The joint committee for the construction industry

The construction industry is actually an outlier. For years, sometimes after difficult negotiations in the joint committee, an agreement has been reached in which the unions commit not to submit candidate lists for the social elections. The union delegation appointed by the unions takes over the tasks of these consultative bodies.

In this case, the employer must of course start the procedure in December, but can stop it in March due to a lack of candidates.

Dirk Wijns, senior consultant
dirk.wijns@mploy.be – 0476 84 24 91