The elections for the appointment of the members of the staff delegation (i.e. the so-called “social elections”) will take place on 12 March 2019.
- Legal timeline
In the framework of the social elections of 2019, the employer, who is responsible for organising the elections, has to comply with several steps in accordance with a timeline set by the Grand-Ducal Regulation of 11 September 2018 on the electoral operations for the appointment of staff delegates (hereafter the “Regulation”). In chronological order, these steps are:
- 1 February 2019: Date for the calculation of the headcount in order to determine the number of staff delegates to be elected.
- 11 February 2019: Deadline for displaying the election notice announcing the date, place and start/end time of the elections as well as the number of delegates to elect and the place where the names of the candidates and the passive election conditions will be available. Deadline for the employer or the current staff delegation to request a ministerial authorisation for postal ballots for employees absent on the election day.
- 18 February 2019: Submission of the alphabetic lists of employees satisfying the conditions for active and/or passive voting rights (i.e. the electoral lists) for consultation. Information by way of display of a notice that every complaint against the electoral lists must be presented to the head of the undertaking and, for information purposes, to the Luxembourg Labour Inspectorate (hereafter the “ITM”, Inspection du Travail et des Mines) within three working days as of the submission of the complaint. Submission of the election notice and the notice of complaint to the ITM via its secure interactive platform.
- 19 – 21 February 2019: Deadline for submitting complaints against electoral lists.
- 25 February 2019: Deadline for submitting candidacies (until 6pm). In the absence, or in the event of an insufficient number, of candidacies, the deadline for submitting candidacies is extended by three days (until 28 February 2019 at 6pm).
- 1 March 2019 (in the event of postal ballots): Deadline for submitting (by registered postal mail or personally against acknowledgement of receipt) the ballot papers and the voting material to the employees who will be absent on the election day. Deadline for displaying of valid candidacies.
- 6 March 2019 (in the absence of postal ballots): Deadline for recording the valid candidacies via the secure interactive platform by specifying the surname, first name, job, social security number, nationality and gender of each candidate.
- 7 March 2019 (in the absence of postal ballots): Deadline for displaying of valid candidacies. Establishment of the ballot papers.
- 12 March 2019 (election day)
- Counting of votes
- Drafting of minutes
- Recording of minutes and election results via the secure interactive platform
- 13 – 15 March 2019: Display of the election results (elected and non-elected candidates).
- 1 April 2019: Deadline for submitting complaints regarding the regularity of the elections to the director of the ITM.
- 2 – 12 April 2019 (in the absence of complaints against the elections): Period for the new staff delegation to enter into office by holding its constituent meeting.
The above timeline applies to companies with a work schedule from Monday to Friday. For companies with a different work schedule, the timeline will have to be slightly adapted.
Moreover, if the work organisation of a company makes it impossible to hold the social elections on 12 March 2019, it is possible to start the actual elections on 10 March 2019. In that event, the closing of the election process and the counting of the votes must nevertheless occur on 12 March 2019.
2. Main changes to the election process
In an effort to modernize and simplify the election process, the Regulation introduces several changes compared to the previous social elections.
The most impacting change probably is the implementation of a secure interactive platform which is operated by the ITM and via which the employer must complete several of the above-mentioned steps. At the latest two months prior to 12 March 2019, the ITM will send to each employer concerned an identification code granting access to the interactive platform.
The first step to be completed via the interactive platform will be for the employer to submit the election notice and the notice of complaints to the ITM. For the first time, the election notice will have to specify the headcount as well as the relevant categories of employees (employees working 16 hours or more per week; employees working less than 16 hours per week and their weekly working hours as provided for in the employment contract; employees under fixed-term employment contract or temporary agency workers or supplied workers) taken into account in order to determine the number of delegates to be elected.
In a next step to be completed via the interactive platform, the employer will have to submit the valid candidacies, by specifying the surname, first name, job, social security number, nationality and gender of each candidate. Once the employer has recorded the valid candidacies on the interactive platform, the ITM will return to the employer a document that will serve for multiple purposes. The document received from the ITM shall be used by the employer to display the valid candidacies in the company’s premises. For the first time, the Regulation explicitly allows to also use electronic means (e.g. the company’s intranet) to display the candidacies. The possibility of the electronic display also applies to the display of the election results.
The document sent by the ITM will also serve as a basis for the ballot papers to be established by the employer.
In addition, the interactive platform shall simplify the drafting and submitting of the minutes of the election process as well as of the election results. Indeed, both the minutes of the electoral operations and the results of the elections are drawn up and submitted to the ITM via the electronic platform. Following this, the ITM will return to the employer a document that can be used for displaying the results of the elections. The results to be displayed are the number of votes received by each effective or substitute staff delegate (i.e. the elected candidates) but also the number of votes received by each candidate who has not been elected.
The effort to render the social election process less burdensome also translates by several template forms that the ITM will make available on the interactive platform and which shall be used be the employer to complete the majority of the above-mentioned steps.
An additional innovation of the Regulation is the fact that, in companies voting according to the proportional representation system (i.e. companies with 100 or more employees), each list of candidates presented by a labour union being representative at national level or by a labour union being representative in a particularly important economic sector can, at the time the list of candidates is submitted, appoint one observer for each electoral office. The observer can either be an employee of the company who is not a candidate to the elections but who has the passive voting right (i.e. who is eligible) or any other representative mandated by the labour union. The role of the observer is to monitor the regularity of the election process. For that purpose, the observer has the right to be present in the electoral office during the entire election process.
The labour unions’ rights in the social election process is also strengthened by the obligation for the employer to submit a copy of the minutes of electoral process and of the election results to each labour union having presented a list of candidates.
Further to the above changes to the election process itself, the upcoming social elections will also result in a change to the structure of the staff representation.
3. Changes to the structure of the staff representation
The 2019 social elections are the first social elections since the law of 23 July 2015 on the reform of the social dialogue which provided for several changes to the structure of the staff representation in Luxembourg. These changes will thus be implemented for the first time with the entry into office of the staff delegations elected in March 2019.
The divisional, the central and the young employees’ representation will no longer exist after the social elections of 12 March 2019.
Furthermore, the joint works council (comité mixte) will disappear. However, in companies occupying 150 or more employees, the rights of the joint works council will be shifted to the staff delegation.
Whereas some levels of staff representation will disappear with the upcoming social elections, the possibility of a new level of representation will be introduced. In groups of companies that form an economic and social unit (entité économique et sociale), at least two staff delegations can request to establish an additional delegation at the level of the economic and social unit. Such request must be submitted to the companies concerned within three months following the social elections of 12 March 2019. The members of the delegation at the level of the economic and social unit are elected by and among the members of the existing staff delegations. The exclusive right of the delegation at the level of the economic and social unit is to exchange information between the various staff delegations from which it originates.
If, among the companies forming the economic and social unit, there are one or more companies with less than 15 employees and thereby without an own staff delegation, the employees of this company (or these companies) can appoint a representative who will participate in the meetings of the delegation at the level of the economic and social unit.
It will be interesting to see if the changes to the election process and to the structure of the staff representation will satisfy the intended objective of simplification.
Christophe Ernzen | Allen & Overy
Senior Associate | Avocat à la Cour