Be Aware September 2020

Social elections, electronic voting and postal voting

The measures taken as part of the COVID-19 crisis management may lead some companies, that initially did not want to use electronic voting or postal voting, to change their minds and to finally decide to use it. Is this still possible?

As indicated in our previous Be Aware, the 2020 social elections procedure will resume between upcoming 16 and 29 September (on X+36), depending on the date chosen for the social elections (between 16 and 29 November 2020) (Y).

Within the framework of social elections, it is possible to use electronic voting, as well as postal voting, provided certain conditions are met.

What are the requirements for a company to use postal voting?

Postal voting may only be used in the following cases:

• in the event of a considerable dispersion of personnel;
• in case of suspension of the execution of the employment contract;
• in case of night work, provided that the following conditions are met for employees of the category concerned:
  1. the number of employees employed between 8 p.m. and 6 a.m. on the day of the election does not exceed 5% of the number of employees employed on the same date;
  2. and the number of employees employed between 8 p.m. and 6 a.m. on the day of the election does not exceed 15.

• when employees are not busy at work during election office hours.

In addition, voting by post is only possible if there is an agreement between the employer and all trade union organisations that put forward candidates. This agreement should be reached at the latest on X+56 (i.e. between 13 and 26 October 2020, depending on the new date chosen for the social elections).

What are the applicable conditions for a company in order to use electronic voting?

The computer system used must meet a number of conditions.

Additionally, the possibility of using electronic voting requires the conclusion of an agreement, at the latest on Y-90.

Electronic voting will only be possible if the decision is taken unanimously by the works council or the committee for prevention and protection at work or, failing that, by the employer together with the trade union delegation.

Based on the dates initially set for the elections, companies wanting to use electronic voting should therefore, in principle, have decided so on Y-90 (i.e. between 11 and 24 February 2020, depending on the date chosen for the social elections).

However, due to the measures currently in force in the context of the COVID-19 crisis management, some companies that initially did not want to use electronic voting are now considering the possibility of using electronic voting.

The legislator has therefore exceptionally derogated from the rules applicable to electronic voting to bring them in line with those applicable to postal voting on two points. Thus, companies will exceptionally have until X+56 (i.e. between 13 and 26 October 2020, depending on the new date chosen for the social elections) to reach an agreement on electronic voting. In addition, the agreement on electronic voting will exceptionally need to be reached between the employer and the trade union organisations that submitted lists of candidates.

It is therefore entirely possible for companies that wish to do so, to use postal and/or electronic voting until X+56 (i.e. between 13 and 26 October 2020, depending on the new date chosen for the social elections), provided that an agreement is signed with the trade union organisations that put forward candidates (and that the other conditions in force for the use of postal and/or electronic voting are met).

Frédérique Gillet

Participate in the recovery of the Belgian economy and reward your employees with consumption vouchers

The Royal Decree of 15 July 2020 introduced the possibility for employers to grant their employees so-called "consumption" vouchers, with a maximum value of EUR300, to support both their employees and the local Belgian economy during these tough times. The vouchers must be granted by the employer by 31 December 2020, and will remain valid until 7 June 2021.

There are multiple advantages to these vouchers:

1. they are intended to help the Belgian economy since they can only be used in Belgian establishments (the hotel and catering sector, approved or subsidized cultural establishments and sports associations with a subsidized or recognized federation);
2. they do not count with regard to compliance with the wage norm; and, last but not least;
3. they are exempt from taxes and social security so long as the following conditions are met:
   
   
   1. The vouchers cannot be granted in replacement of an existing remuneration or benefit;
   2. The granting of consumption vouchers must be provided for by a collective bargaining agreement concluded at the sectoral or company level. In the absence of a trade union delegation, or if the category of personnel concerned is not generally covered by such an agreement, the granting of consumption vouchers may be governed by an individual agreement;
   3. The agreement shall mention the maximum nominal value of the consumption voucher;
   4. The value shall not exceed EUR10 per voucher. Thus, a maximum of 30 x EUR10 vouchers may be granted per employee,- as a maximum value of EUR300 can be granted;
   5. The voucher shall be issued in the name of the employee. In this respect, it is sufficient that the details of the vouchers granted are mentioned in the employee’s individual account for this condition to be met;
   6. The voucher shall clearly state its validity date (until 7 June 2021), the date on which it was issued (until 31 December 2020) and the fact that it can only be used in Belgian establishments listed by the Royal Decree (Catering, cultural and sports sectors, see above);
   7. Finally, vouchers cannot be exchanged partially or entirely in cash.

It is also to be noted that the Royal Decree does not provide for any rules other than those outlined above. This means that, unless the industry the company belongs to concludes a collective agreement relating to consumption vouchers, the employer is free to determine certain granting conditions, such as pro-rata calculation (if any) of the vouchers in the event of part-time work, departure from the company or suspension of the employment contract, or to determine the (categories of) employees concerned by the granting (without this being considered discrimination).

These consumption vouchers are therefore an advantageous way to reward deserving employees and to contribute to the "recovery" of the Belgian economy in these difficult times of COVID-19. So hustle up! You have until 31 December 2020 to take all necessary steps to do so.

Pierre Dion & Manon Denis

DLA Piper employment publications of recent months

• La loi prévoyant la suspension des élections sociales a été publiée !

HR Magazine by Frédérique Gillet

• Les entreprises doivent mener une politique anti-discrimination mieux pensée

L’Echo by Laurent de Surgeloose and Frederic Brasseur

• Quel est l’incidence du chômage temporaire sur la couverture pension et sur la couverture décès dans les plan de pension complémentaires ?

Trends Tendances by Laurent de Surgeloose and Frederic Brasseur