Newsletter 2023 – 03

1 Office news

The 160 participants in the hall and online look back on another successful edition of the Spitsuur HR.
You can here .

2 Publications

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

Companies that usually employ an average of 50 employees in the reference period must start the social election procedure for the appointment of the employee delegation in a committee for prevention and protection at work. Companies with an average of at least 100 employees must also hold elections to appoint this delegation to the works council.

The number of “employees” is counted in a special way.

Action point for employers: if you believe that your company has reached approximately 50 or 100 employees, you can make choices today that will determine whether or not you should start the social election procedure. In that case, be sure to do the exercise in time to see what numbers you already have.

The choice to call on an additional employee or a temporary worker in the coming period or to outsource the work to a contractor or supplier instead can decide whether you should start the social election procedure.

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

Not only the employees you employ count when assessing the figure of 50 or 100, temporary workers are also taken into account.

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

2. Counting your own employees

All employees count in the assessment of the number of employees, including your long-term ill employees or other employees whose performance of the contract has been suspended. In principle, employees who work for you abroad should also be taken into account (e.g. you have someone employed who works for you in the South Asian market to recruit customers there).

A number of categories are equated with employees: students, employees who have been placed in your company for vocational training by the VDAB and researchers from the FWO. Excluded are employees who are employed under a replacement contract.

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

Employees who have an actual hourly schedule of less than 3/4th of a full-time hourly schedule should only be counted for half (i.e. divide by 730 instead of by 365). An employee who progressively returns to work at a rate of 50% therefore only counts for half.

Example: an employee is initially employed part-time for 100 days in the reference period; after that he will receive a full-time contract. This employee will count as 100/365 + 265/(365X2) = 0.64 full-time equivalent.

3. Counting temporary workers

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

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

As far as temporary workers are concerned, a different – ​​and shorter – reference period applies. The count is based on the average number of days that 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 3/4th of a full-time employment only counts for half.

4. Points of attention

An important number of people who may perform services for you do not count in determining whether you need to organize social elections:

• Self-employed people who deliver services for you (managing director, independent contractors, etc.)
• Employees who are employed by another employer and who provide services to you in the context of an agreement to provide services (e.g. employees of a custom company who work in an enclave with you, the external cleaning team, etc.)

If you need additional staff in the period April - June 2023:

• a choice to fill that need with a temporary worker will mean that you are expected to employ 1 additional employee per year;
• If you choose to hire an employee during this period, he will only count for 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 social election count.

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

In a number of situations you have met the standards for establishing a works council and/or committee, but you do not have to start 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 the number of 100 or 50 employees at the time when you should start the social election procedure, then you may decide on that basis to start the election procedure. of a works council, works council and committee respectively. In the event of a dispute, the employer will have to 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 by ceasing all or a number of activities of the company and he will therefore fall below the threshold of 50 or 100 respectively, you can ask the inspector-district head of the Supervision of Social Laws for the to suspend the start of the social elections procedure (for works council and committee respectively). This permission is given after a special procedure. The suspension applies for 1 year. The existing organs continue to function.

The joint committee for the construction industry

The construction company is actually an outsider. For many years now, sometimes after difficult negotiations in the joint committee, an agreement has been reached in which the unions undertake not to submit lists of candidates for the social elections. The trade union delegation appointed by the trade 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 if there are no candidates.

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