NEWSFLASH EMPLOYMENT – COVID-19
Impact of the COVID-19 crisis on social elections: suspension of electoral procedure legally confirmed
In a previous Newsflash, we informed you that the social partners in the National Labour Council reached an agreement on the suspension of the election procedure because of the COVID-19 crisis. This has now also been legally confirmed. Yesterday an act regulating the suspension of the social elections procedure of the year 2020 due to the COVID-19 corona crisis pandemic was voted in Parliament. This act will soon be published in the Belgian Official Gazette (with retroactive effect from 17 March).
This act puts an end to the uncertainties that existed with regard to the current electoral procedures and the actions that still had to be taken in this context.
The most important principles in this act can be summarised as follows:
The period in which the new election dates will take place has not (yet) been determined. Earlier, the NLC had proposed the period from 16 to 29 November 2020 in this context, but so far this has not been confirmed by the government. We may have to wait and see how the pandemic will evolve and how long its consequences will last.
1) The period in which the new election dates will take place has not (yet) been determined. Earlier, the NLC had proposed the period from 16 to 29 November 2020 in this context, but so far this has not been confirmed by the government. We may have to wait and see how the pandemic will evolve and how long its consequences will last.
2) All electoral acts up to and including X + 35 had to be carried out according to the initial calendar. In concrete terms, this means that the candidate lists had to be submitted no later than day X + 35 (i.e. in principle no later than 30 March according to the initial calendar, except for companies that start the election procedure later, or were delayed due to legal proceedings).
The candidates who appear on these candidate lists from day X + 35 will benefit from special protection against dismissal.
3) All further electoral acts shall be suspended for an indefinite period of time as of day X + 36. This means that all actions from day X + 36, such as, for example, the posting of the candidate lists or the phase of complaint and appeal against these candidate lists, cannot be continued. If this should nevertheless happen, the act explicitly stipulates that these acts are null and void.
All further electoral acts shall be suspended for an indefinite period of time as of day X + 36. This means that all actions from day X + 36, such as, for example, the posting of the candidate lists or the phase of complaint and appeal against these candidate lists, cannot be continued. If this should nevertheless happen, the act explicitly stipulates that these acts are null and void.
Only when no single candidate list has been submitted (and this for none of the personnel categories), the procedure may be terminated since the original day X + 36. For this purpose, the ordinary termination procedure must be followed.
As mentioned above, the date on which the election procedure can be resumed from X + 36 has not yet been determined.
4) Compliance with the eligibility conditions will be assessed for all candidates in relation to the initial election date Y (and not in relation to the new election date yet to be determined).
5) The existing consultative bodies (Works Council and/or Committee for Prevention and Protection at Work) will continue to function until the newly elected bodies are in place (i.e. at the latest on the new day Y + 45). On the basis of the election period proposed by the NLC, this date would be situated between the 31st of December 2020 and the 13th of January 2021.
6) Consequently, all candidates, all non-elected candidates and all members of the existing consultative bodies remain subject to the special protection against dismissal until the new day Y + 45 – and this also during the period of suspension.
This special dismissal protection consists of a fixed part (in function of the seniority on the date of dismissal) and a variable part if the employee requests his reintegration and the employer does not agree to this.
However, for all candidates in 2016 who no longer appear in 2020, there is a special arrangement for the variable part of the special protection against dismissal:
- For those who were already dismissed before the 17th of March 2020, the calculation of the variable protection indemnity will be limited in function of the initially foreseen day Y + 45 (normally June 2020);
- For those who are dismissed after the 17th of March 2020, the normal calculation of the variable protection indemnity continues to apply, more specifically as a function of the deferred day Y + 45 (possibly at the end of 2020 – beginning of 2021).
7) The occult period of protection against dismissal is closed at X + 35 for the candidates who were effectively nominated as candidates on this day.
For the substitutes of these candidates, who will only be nominated after the period of suspension, the occult period does not run for the moment. This occult period will only start for them from the 36th day prior to the new day X + 36 to be determined within the new election calendar.
As soon as the new election dates are confirmed by Royal Decree, a new election calendar can be drawn up. We will of course keep you further informed and remain at your disposal for further questions in this respect.
Would you like to know more?
Contact the Racine employment team.
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