Obligation to organize social elections: habitual average employment of at least 50 employees
Undertakings (i.e., companies in the factual sense, also referred to as a technical business unit or TBU (technische bedrijfséénheid/unité technique d'exploitation)) that habitually employ on average at least 50 employees will have to hold so-called 'social elections' in May 2024. These elections are for the establishment of a committee for prevention and protection at work (CPPW). Undertakings that habitually employ on average 100 employees or more must also elect a works council.
The average headcount is determined over a reference period of one year from 1 October 2022 through 30 September 2023 (i.e., Q4 2022 through Q3 2023). Technically, the calculation is based on the total number of calendar days for which employees have been registered with the Belgian social security authority during the reference period, divided by 365. Therefore, the key information on which the calculation is based is from the four quarterly employee declarations made during the reference period with the social security authority for employees, i.e., the so-called 'Dimona' declaration.
Interim agency workers
However, a different approach applies for interim agency workers, i.e., employees formally employed by a recognized interim employment agency and used by the undertaking. These interim agency workers are also counted when determining the habitual average headcount, except where they replace a permanent employee during the suspension of the performance of their employment contract.
However, for these interim agency workers, a shorter reference of — one quarter — applies, i.e., Q2 2023, the period from 1 April through 30 June 2023. The total number of days is to be divided by 92. In other words, an interim agency worker employed during this quarter counts as an employee who has been employed a full year for the calculation of the habitual average employment.
For this reason, undertakings need to set up a specific register for agency workers during Q2 2023. In this register, the interim agency workers should be mentioned with a chronological record including their registration number, surname and first name, the beginning and end of the temporary work period, the weekly working time of the interim worker and the details of the interim employment agency.
Action point
As the special reference period for interim agency workers started, it is important to determine whether your undertaking is hovering around the 50 or 100 employees threshold in terms of average headcount. If so, it should be verified whether the undertaking can remain below the relevant threshold by actively avoiding the use of — or reducing the number of — interim agency workers in Q2 2023. Moreover, the company will have to keep a specific register.
