Social elections 2024: a few reminders before the elections begin

The next social elections will take place between 13 and 26 May 2024 (day Y). However, the election procedure - which lasts more than 150 days - begins in December 2023. 

Below are some reminders to guide you through the different stages, from the preliminary phase up to the organisation of the actual elections

Which companies should organise social elections?

A Works Council (WC) must be elected in companies with an average of 100 employees,  while a Committee for Prevention and Protection at Work (CPPW) must be elected in companies with an average of 50 employees.

The reference period for calculating average employment runs from 1 October 2022 until 30 September 2023 for employees with an employment contract (even if its implementation was suspended, e.g. due to incapacity) or  apprenticeship contract when they were hired. The second quarter of 2023 should be taken into account for temporary agency employees (unless they are replacing a permanent employee).

The average employment of staff, excluding temporary agency employees, is calculated based on the total number of calendar days recorded in Dimona for each of them during the reference period, divided by 365. The total number of calendar days worked during the second quarter of 2023 divided by 92 is taken into account for temporary agency workers.

The company = the technical business unit (TBU)

Social elections should be organised at the level of the technical business unit (TBU), defined on the basis of economic and social criteria. By day X-35, i.e. between 9 and 22 January 2024, technical business units will be defined. The concept of technical business unit does not necessarily overlap with that of a legal entity. A legal entity can therefore consist of several technical business units and vice versa.

The existence of a certain autonomy in economic and social matters will determine the level at which the Works Council and CPPW should be established. In case of doubt, social criteria will take precedence over economic criteria.

The law does not specify what is to be understood by "economic and social criteria", so it is necessary to refer back to the relevant case law.

The economic criteria are: identity of activities, common accounting, common legal and administrative services, common economic and budgetary policies, composition of management, common shareholders, etc.

The social criteria are: the use of common languages, common management and personnel policy, identical work regulations, organisation of common activities, similar evaluation and promotion system, identical pay policy, common intranet, etc. 

Depending on the existing social and economic links within the same company, several legal entities may form a single technical business unit.  In this regard, the legislation defines the conditions by which, until proven otherwise, different legal entities are presumed to constitute a single technical business unit. These presumptions are as follows:

• the legal entities belong to the same economic group or are managed by the same person or by persons who have an economic link between them, or these legal entities have the same activity, or their activities are linked among each other;
• and there are certain elements indicating a social cohesion between these legal entities, such as a human community gathered in the same buildings or nearby buildings, common management of staff, common labour regulations or common collective labour agreements, or agreements containing similar provisions.

However, those presumptions can only be invoked by trade unions or employees - the employer cannot invoke them.

Conversely, a legal entity may have to be split into several technical business units. Thus, the resulting technical business units (or at least some of them) individually may not reach the number of staff required for the purpose of organising social elections. 

However, the law also imposes the establishment of a CPPW and a Works Council in companies that - as legal entities (and not as technical business unit) - employ an average of 50 or 100 employees. In these cases, a so-called procedure of "regrouping" the technical business units of the same legal entity must be followed until they finally reach the thresholds of 50/100 employees.

Represented staff categories

After the social elections, employees will represent their colleagues in the WC and CPPW. Representation will be based on a classification according to the different staff categories in the company: white-collar workers, blue-collar workers, young workers (if the company has at least 25 employees who are under 25 on the day of the elections) and executives (if the company has at least 15 executives on day X)

“Executives” are defined as those holding senior positions, which are generally reserved for holders of a degree of a certain level or those with equivalent professional experience. Those who are part of the managerial staff cannot be considered executives.

They are individuals who hold a "higher" position because of the authority they exercise or purely because of the content of the job. It is presumed that the job of an executive involves autonomous decision-making power in the execution of work, certain authority to lead and/or significant responsibilities. 

Thus, whether a particular employee belongs to the category of executives will always have to be assessed in concreto and will depend on the nature and structure of the company. 

Commencement of the procedure - The initial notice and decision

The election procedure starts on X-60 (between 15 and 28 December 2023 depending on the date of the social elections), which is 60 days before the posting of the notice announcing the date of the social elections within the company (= day X).

On that date, the employer must communicate a variety of information to employees and, if applicable, to the WC and the CPPW, including the list of positions of the so-called "managerial staff" and the social and economic criteria it intends to take into account for determining the technical business units.

Then begins a 25-day period of so-called "consultation" with the Works Council and/or the CPPW, or, in their absence, with the union delegation. During this period, the criteria used by the employer as well as its intention to possibly divide a legal entity into several technical business units or, conversely, to (not) group several legal entities into a single technical business unit are mentioned, among other things.

After the expiry of those 25 days (i.e. on X-35), the employer communicates its written decision stating the number of technical business units it has decided to accept and their description. This decision can be appealed by the employees and/or their trade union organisations. 

The managerial staff = ?

As mentioned above, on X-60, the employer must communicate the list of the managerial staff within the company. This first announcement must be confirmed on day X-35 (i.e. between 9 and 22 January 2024 depending on the election date chosen). The employer will later appoint its representatives in the consultation bodies on the basis of the managerial staff list. They cannot stand as employee representatives and have no voting rights.

The Social Elections Act defines managerial staff as "the persons in charge of the day-to-day management of the company, authorised to represent and commit the employer, as well as staff members, immediately subordinate to these persons, when they also perform tasks of day-to-day management".

In practice, these are the two highest levels in the hierarchy of the personnel structure, in charge of the day-to-day management of the company.

To assess the two levels of managers, it is necessary to look at the actual circumstances, especially who takes charge of the company on a daily, effective, independent, and continuous basis. The job title in itself is not decisive.

The organisation chart can be an important tool for this reflection.

We would like to remind you that since the 2016 social elections, the "confidants" are no longer allowed to represent the employer in the Works Council and CPPW. Nor are they allowed to stand as candidates. Consequently, they enjoy the same status as the prevention adviser.

How many mandates?

The number of mandates to be granted depends on the number of employees employed on day X. Based on this number, the number of effective mandatesto be granted will be as follows:

There will also be as many deputy members as ordinary members. Finally, it is possible to add additional mandates for the executives in the Works Council.

Once the number of mandates is determined, they are distributed among the different staff categories. The young employees are given priority in this process, after which the other mandates are distributed proportionally among the different personnel categories represented in the company, with at least one mandate being allocated to each category.

Some novelties regarding the 2024 social elections

A number of procedural novelties for the 2024 social elections should be highlighted

Invitations to vote can also be issued electronically

In principle, the invitations to vote are delivered in person to the company (on day X+80, i.e. between 3 and 16 May 2024).  In case of absence, the voter will be invited by registered letter. The voter's surname and first name must be indicated on the envelope to avoid any confusion.

For the 2024 social elections, the employer will also be able to invite voters through other means, provided that a unanimous agreement on this matter has been reached within the Works Council or within the CPPW or, in their absence, between the employer and the trade union delegation. This agreement will only apply to voters who have a professional e-mail address and access to a digital tool at their usual place of work.

The agreement in question must be concluded no later than the day on which the notice announcing the date of the elections is posted, i.e. day X. The employer must keep proof of this alternative delivery of notice and of the receipt by the addressee.

In the absence of proof of receipt by the addressee, the notice must be sent by registered letter at least eight days before the date of the election. By unanimous agreement within the Works Council or the CPPT or, in their absence, by agreement between the employer and the trade union delegation, this method may be replaced by sending the notice by alternative means. In this case, the employer must provide the Works Council or the CPPT with the list of voters covered by the agreement.

Participation of temporary workers in the elections as voters

Since 2020, temporary workers have been able to take part in the vote provided they met two seniority conditions with the user. For the 2024 voting round, only one seniority condition is required, namely the interim worker is allowed to vote if they have effectively worked 32 days for the user during the months of November and December 2023 and January 2024.

More secure electronic voting

Since the 2020 social elections, voters can vote electronically from their usual place of work, subject to an agreement between the Works Council, the CPPT or the trade union delegation (by day X at the latest). This agreement should determine the conditions ensuring the secrecy of the vote and avoiding any influence on voting behavior during the vote. The law now stipulates that for this electronic voting, an end-to-end encrypted network connection must be provided to ensure reliable voter authentication.

Protection against dismissal

Candidates and elected staff representatives to the Works Council and the CPPW are protected against dismissal (cf. Act of 19 March 1991).  They can only be dismissed for urgent reasons recognised in advance by the labour court or for economic or technical reasons recognised in advance by the joint committee.

This protection begins on date X-30 (i.e. for the 2024 elections, from 14 January to 27 January 2024), the date on which the employer is not yet aware of the candidate lists, which must be sent to the employer by day X+35. This is known as the "hidden protection period". It ends on the date of appointment of the candidates elected following the next elections. 

Taking into account the financial penalty applied to non-compliance with this protection (up to 8 years' salary), every employer should be extremely careful when dismissing employees from the beginning of 2024. After all, any dismissed employee can still stand as a candidate in the elections and thus benefit retroactively from protection against dismissal.

Legal recourse

Specific appeals may arise during the different stages of the social election procedure (on day X-60, on day X, at the latest on day X+40 and on day Y+15). The procedures that need to be followed are characterized by very short deadlines and, in principle, the decision cannot be appealed. If necessary, we can provide specific assistance in this regard. 

In this regard, one of the novelties for the 2024 social elections is the possibility of rectifying inaccuracies in the election results based on purely material errors, without the intervention of a judge, on the basis of an agreement between the employer and all the representative organisations of workers and executives who have put forward candidates.