2020 Social Elections: Temporary agency workers called on to vote at user companies?
The act of 4 April 2019 amending the Act of 4 December 2007 on the social elections has been published in the Belgian State Gazette of 30 April (hereafter "the Act of 4 April 2019").
In our February Be Aware, we already referred to certain expected changes, with regard to the reference period that applies for calculating the threshold of 50 employees (for the Committee for Prevention and Protection in the workplace) or of 100 employees (for the Works Council) (this period runs from 1 October 2018 until 30 September 2019), with regard to moving the reference period that applies for counting temporary agency workers to the 2nd trimester of 2019. These change have been adopted by the Act of 4 April 2019.
As to the obligation to keep an annex to the general labor register for temporary agency workers, the Act of 4 April 2019 provides for a derogation from this obligation. This derogation will apply if the works council unanimously notes that the threshold of 100 employees has been exceeded. The works council has a 30-day period following entry into force of the Act of 4 April 2019 to make that determination.
The Act of 4 April 2019 confirms the amendments announced in our February Be Aware. This Act provides for other amendments to the Act of 4 December 2017 regarding the social elections, including the right for temporary agency workers meeting certain conditions to show up to vote at the user company.
As a matter of fact, as of the next elections, temporary agency workers who have been working at the user company for at least three months can vote at the company and choose staff representatives within the works council and the committee for prevention and protection at work.
It only applies to temporary agency workers fulfilling all of the seniority conditions:
- The temporary agency workers have worked at the user company during a reference period starting on 1 August 2019 and ending on day X (or Y-90) for at least three months on end or, in case of interrupted work periods, for at least 65 working days in total;
- And they have worked at the user for at least 26 working days in total during a reference period starting on day X (Y – 90) and ending on day Y – 13.
As temporary agency workers will be able to vote, the Act of 4 April 2019 equates them with company employees for the application of various provisions (in particular for establishing voter lists, for composing electoral colleges, with regard to complaints and legal remedies which can be filed against the information posted on day X, as well as against the candidate lists) and for provisions regarding voting operations.
As of 2020, temporary agency workers fulfilling certain conditions might be able to vote at the user company.
LIMOSA notification obligation for the self-employed now restricted to specific high-risk industries
Before 1 January 2019, there was a general obligation to preliminarily notify via a so-called LIMOSA declaration to Belgian Social Security any operations in Belgium of a foreign self-employed individual, usually operating abroad and temporarily coming to Belgium to carry out an assignment.
However, the law provided various exemptions from this general obligation, depending on the reasons for coming to Belgium and the length of stay.
Nonetheless, in 2012 the European Court of Justice ruled that this general obligation is an excessive restriction on the EU principle of the free movement of services.
The LIMOSA notification obligation had already been amended twice in 2013 and 2014, but those amendments were not sufficient, according to the European Commission.
To address these concerns, on 1 January 2019 the general notification obligation on self-employed individuals was turned into a notification obligation for specifically listed “high-risk industries”, namely construction operations, meat processing operations and cleaning operations.
Hence, as of 1 January 2019, the general LIMOSA notification obligation only applies to foreign self-employed individuals operating in these high-risk industries.
As a matter of fact, for them, nothing has really changed. They still need to notify Belgian Social Security in advance, unless they can invoke one of the following exemption grounds:
- Only for meat processing operations and cleaning operations: in the context of an obligation to supply goods, they are sent to Belgium for initial assembly and/or first installation of a good supplied by themselves, provided that this assembly or installation is required for activating the supplied good and provided that the assignment in Belgium does not take longer than eight days;
- They come to Belgium for 5 days per month at most in order to carry out urgent maintenance or urgent repairs of machines or devices supplied by them to a company located in Belgium, where repairs or maintenance will take place;
- It concerns business people not staying in Belgium any longer than 5 days per month;
- It concerns company directors and mandate holders not staying in Belgium any longer than 5 days per month in order to attend committees and general meetings;
- They are staying in Belgium in order to attend scientific conferences;
- They come to Belgium in order to attend other small group meetings (e.g. strategy discussions, contract negotiations with a client, appraisal interviews...), provided that they do not spend more than 60 days per year on an annual basis attending these meetings in Belgium, and that each meeting does not last more than 20 consecutive days.
As of 1 January 2019, the LIMOSA notification obligation is in principle restricted to the self-employed individuals operating in the construction industry, the meat processing industry or in the cleaning industry. For other self-employed individuals this obligation no longer applies.