In this issue:
The ”occult protection period” (”période de protection occulte”/”occulte beschermingsperiode”) will start between 12 and 25 January 2020 (X-30) and will finish between 17 and 30 March 2020 (X+35) depending on the date chosen for the social elections
As you know, the next social elections will take place between 11 and 24 May 2020.
The candidates in these social elections benefit from a specific protection against dismissal on the basis of the Act of 19 March 1991. As a matter of fact, the employees who are standing for election can only be dismissed for serious cause previously recognized as such by the labour court or for economic or technical reasons previously recognized as such by the competent joint committee. Non-compliance with these procedures entails the payment of protection indemnities which could amount up to 8 years of salary (max).
The specific protection for the candidates in the 2020 social elections starts 30 days prior to the day on which the notice announcing the day of the elections is posted, or X-30 in the social election jargon (120 days before the voting day). Since the actual elections must be held between 11 and 24 May 2020, this means the protection starts between 12 and 25 January 2020, depending on the voting day chosen by the employer for the elections.
The trade unions should nevertheless only submit their candidates’ list on X+35 in the social election jargon, or 55 days before the voting day, i.e. between 17 and 30 March 2020 depending on the date chosen by the employer for the elections.
As a consequence, during this 65-day period, the candidates already benefit from the specific protection against dismissal, but during this period, the employer does not know yet which employees are mentioned on the list of candidates (as the employer only receives the list of candidates on X+35)… This period is called the occult protection period (”période de protection occulte”/”occulte beschermingsperiode”).
Given the retroactive nature of the protection against dismissal for the candidates in the social elections, it is clearly recommended to avoid proceeding with dismissals in this 65-day period. Moreover, it goes without saying that a dismissal occurring immediately prior to the start date of the candidates’ protection against dismissal might be challenged on grounds other than the Act of 19 March 1991, by arguing, for example, that such a dismissal would be manifestly unreasonable within the meaning of Collective Bargaining Agreement no. 109.
If dismissals during this period are inevitable, and the dismissed employee turns out to be a candidate, the employer has two options to consider:
The first option consists of challenging the validity of the candidacy by using the appeal procedure set out in the legislation on social elections. According to the case-law, an appeal before the President of the Employment Tribunal is indeed possible, not only if a candidate does not meet all conditions for a valid candidacy (for instance, a blue collar worker who submitted his candidacy for representing the white collar workers), but also if a candidacy were to be improper, which is generally defined as a candidacy lacking the intention to represent the staff members, solely in order to benefit from the protection against dismissal. It is nevertheless quite difficult for an employer to establish that a candidacy is improper.The social election procedure only provides a very short timeframe for lodging such a claim, as the employer only has 7 (calendar) days for submitting an appeal before the President of the Employment Tribunal.
- The other option consists of accepting the request for reinstatement within the company, but immediately starting the procedure to end the specific protection, for instance, by applying for the authorisation of the Joint Committee to dismiss the candidate for economic or technical reasons.
A cautious employer will avoid proceeding with any dismissal during the occult protection period (”période de protection occulte”/”occulte beschermingsperiode”).
More NSSO actions against fake secondments coming up?
It is an open secret that in some cases seconded employees are used without the substantive conditions for a secondment being met. As a matter of fact, a secondment to Belgium requires the employee coming to Belgium temporarily for work to remain under the sole employer’s authority of the company he or she normally works for, and hence not under the authority of the client in Belgium with whom the foreign company has signed a contract. However, in certain cases the Belgian end user turned out to be exercising employer’s authority and the concept of secondment turned out to be used solely to avoid payment of social security contributions.
When fighting such practices, the National Social Security Office used to face the case-law of the Court of Justice stating that the A1 form confirming that the employee in question was subject to the national social security scheme of the EU member state where the employee in question lives remains binding until it is withdrawn by the EU member state where the employee in question lives.
However, in its judgment dated 6 February 2018 (C-359-18, Altun) the Court of Justice ruled that the national social security administration (in the case at hand, the National Social Security Office) can ignore an A1 form if the actual facts show that this A1 form was obtained through fraud and the national authorities that issued the A1 form fail to withdraw the form issued, in the light of the identified fraud.
Even though this judgment provided the National Social Security Office in principle with a legal ground for claiming payment of Belgian social security contributions from the Belgian company concerned, in cases in which a Belgian company was exercising employer’s authority over seconded employees and the secondment was found to be fraudulent, there was the issue of the social inspection of the National Social Security Office not being competent to monitor compliance with the Act of 24 July 1987 on temporary work, temporary agency work and hiring out of workers for the benefit of users. As a matter of fact, only the social inspection of the Federal Public Service Employment, Labour and Social Dialogue was competent to take action if a foreign company was providing a Belgian company with employees in a fraudulent manner.
However, in a Royal Decree dated 7 August 2019, the social inspection of the National Social Security Office was added to the public servants that are competent to monitor compliance with the Act of 24 July 1987.
Even though the actual impact of this legislative change remains to be seen, the number of disputes in case of fraudulent secondments is expected to increase substantially. As a matter of fact, contrary to the social inspection of the Federal Public Service Employment, Labour and Social Dialogue, the National Social Security Office has a direct interest in tackling situations in which payment of Belgian social security contributions that are actually due is avoided by setting up fraudulent secondments.
From now on, the social inspection of the National Social Security Office is also competent to tackle secondment fraud.