Be Aware – July 2023

The next social elections to be held between 13 and 26 May 2024

Every four years, staff representatives in the works council and the committee for prevention and protection at work are elected in social elections. Setting the date of the next social elections requires a new Act every four years, as the dates of the social elections set by article 9 of the Act of 4 December 2007 concerning the social elections needs to be amended every four years. Generally, the Act determining the dates of the new elections also introduces some changes to the procedure after evaluating past social elections.

On 5 June 2023, the Act setting the dates of the next social elections at between Monday 13 May and Sunday 26 May 2024 was approved. The period between the next and the last social elections will only be 3.5 years, as the social elections scheduled for May 2020 were postponed to November 2020.

The social election procedure takes 150 days, so employers planning to hold the vote on Monday 13 May 2024 should start the election procedure on 15 December 2023. Employers who want to schedule a vote on Sunday, 26 May 2024, should start the procedure on 28 December 2023. Most employers will probably choose a date in the first week to avoid having to effect the first notification under the social election procedure during the Christmas period.

The Act of 5 June 2023 also introduced some minor changes to the election procedure.

One change concerns how voters are invited to the vote. The works council or the committee for prevention and protection at work can now agree that the voters will be invited to the vote by email. This is a considerable simplification compared to the previous rule that the invitations were either physically handed over at the place of work or sent by registered letter. This agreement requires all workers to have a professional email address and that the employer can submit evidence confirming the sending and the receipt of the invitation.

Another change concerns a clarification of temp agency workers who are entitled to participate in the social elections. Only temp agency workers who worked at least 32 working days in the 3 months preceding day X (the day on which the precise election day is announced) are entitled to vote. For the May 2024 social elections, this reference period will be between 1 November 2023 and 31 January 2024 to participate to the vote. The temp agency should provide the user with the data in relation to the temp agency workers meeting this condition within five calendar days after the end of this reference period.

The Act of 4 December 2007 concerning the social elections used to stipulate that electronic voting was only allowed if the software was downloaded on the employer’s IT network. This condition has been abolished to allow voting through cloud-based applications.

The Act of 5 June 2023 finally clarified that there’s no need to start a procedure before the Employment Tribunal to obtain a rectification of a material error in the counting of the votes if the employer and all trade unions who presented candidates agree an error occurred in the first counting of the votes.

 

New rules on sick leave during holiday leave

Both the Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time and the Belgian Act of 28 June 1971 concerning the annual holiday leave of workers stipulate a full-time employee with a complete reference period is entitled to four weeks statutory holiday leave per year. Statutory holiday leave is an important principle of European social law. And it shouldn’t be made subject to conditions that mean employees don’t get the leave they deserve.

Royal Decree of 30 March 1967 determining the general implementation modalities of the Acts concerning annual holiday leave of workers stipulates that if an employee is ill when a period of statutory holiday leave is planned to start, then the period of holiday leave is cancelled and should be taken up at a later point in time.

But this is only the case if the illness or accident takes place before the start of the holiday leave. Belgian law does not stipulate any particular rule if an employee falls ill or has an accident during a period of holiday leave, so this period is still holiday leave.

In its judgement of 21 June 2012, the European Court of Justice held that the Working Time Directive should be construed as prohibiting a national legislation that does not entitle an employee to take holiday leave at a later stage if the employee becomes unfit for work during a period of annual holiday leave.

Bearing in mind this contradiction between Belgian and European law, on 25 May 2023 the government submitted a draft Act to Parliament to bring Belgian law in line with the requirements of European law. Parliament unanimously approved the draft Act on 13 July 2023.

The new legislation stipulates that if an employee becomes ill or has an accident during a period of holiday leave, they should immediately inform their employer of the illness or accident and the place where they’re staying. The employee should also immediately send a medical certificate to the employer. This certificate should mention the expected duration of the sick leave and whether or not the employee is able to travel. In case of force majeure (for instance if the employee is hospitalised), the employee should provide the employer with this medical certificate within a reasonable time.

If an employee provides a certificate, the days planned as holiday leave are converted into sick leave. The holiday leave can be taken up at a later stage. The normal rules apply to determine whether the employee is entitled to sick pay.

The work regulations should determine the requirements an employee should comply with in case of illness during a period of statutory holiday leave, for instance who should be informed (the direct manager, the HR department), who the medical certificate should be sent to and how this should be done (eg by email). The employer can insert these provisions in the work regulations without having to follow the normal procedure for amending the work regulations, so the approval of the works council is not necessary.

The new Act does not stipulate any provisions in relation to the right by the employer to have recourse to a controlling doctor. The rule under the 1978 Act on Employment Contracts that an employee is not entitled to refuse a medical examination by a controlling doctor appointed by the employer is also applicable in the case of illness during a period initially planned as holiday leave. It goes without saying it will be difficult for an employer to find a controlling doctor who can perform this medical examination if the employee is abroad.

The new Act enters into force on 1 January 2024.