Companies (read: technical business entities) that exceed the threshold of at least 50 employees must organise social elections in 2024.
To determine the average number of employees, the number of temporary workers active within the company during a given reference period should also be taken into account. The period of reference for this purpose concerns 1 April 2023 to 30 June 2023.
The number of temporary workers employed within companies during this reference trimester must be taken into the equation of the total number of employees, excluding temporary workers who replace permanent employees whose employment contract is suspended (e.g. due to illness or time credit). This may therefore result in the threshold for social elections being exceeded.
Register for temporary workers
If a company used temporary workers during this reference trimester, there is an obligation to keep a special register for temporary workers.
This register, which is an annex to the general employee register, keeps general information relating to the temporary worker (including registration number, the beginning and end of the employment as well as the relevant temporary office, etc.).
This register aims to ascertain whether the thresholds for organising social elections in 2024 are met.
Failure to maintain such register can be sanctioned administratively or penally with a level 2 sanction. This involves an administrative fine of €200 to €2,000 or a penal fine of €400 to €4,000. The amount must then still be multiplied by the number of employees involved.
Exemption from obligation of special register
An opt-out from the obligation to keep such special temporary worker register is possible but some conditions must be complied with:
- The technical business entity has more than 100 employees;
- a works council already exists and unanimously declares that the 100-employee threshold has already been exceeded;
- the declaration appears in the minutes of the works council meeting.
If by 31 March 2023 at the latest such agreement of the works council can be documented, then the company is exempted from the obligation to maintain the register for temporary workers in the second quarter of 2023.
Such opt-out possibility is evident since the purpose of the special register is to determine whether the thresholds for social elections are exceeded. If it is already established that more than 100 employees are active within the company in question and the thresholds thus have consequently been exceeded, keeping track of temporary workers would not make a difference.
If at a later stage a dispute would still arise regarding the average number of employees active within the company, invoices from temporary employment agencies can still prove how many temporary workers were actually employed during the reference period. In the absence of the special register, the number of temporary workers can therefore still be substantiated in other ways to the extent necessary.
Some practical tips
If such exemption is a possibility within your company (more than 100 employees?) then proceed as follows:
- New agenda item for works council
- Meeting necessary before 31 March 2023
- Obtain unanimous declaration by works council that employee thresholds have already been exceeded
- Take note of the unanimous agreement of the OR in the minutes
- Maintain a backup record (if disputes exceeding thresholds later)
Even if your company does not have 100 employees, it may still be interesting to try to obtain such an agreement with the works council. An exemption for maintaining the special register could imply one less administrative burden. This may be recommended for companies that just barely fail to reach the 100-employee threshold (and which might exceed it when including the temporary workers).