Social Elections 2024: Who are the leading personnel in a company and why is this concept important?
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Why it is crucial to correctly identify the leading personnel in a company.
Members of a company’s leading personnel (leidinggevend personeel/personnel de direction) cannot be put forward as candidates during the social elections, and thus cannot be elected as employee representatives. Furthermore, they are not entitled to vote during the elections and may thus not be included on the electoral lists.
However, members of the leading personnel are taken into account to determine the employment thresholds (ie, thresholds triggering elections for works council and/or health and safety committee) and the number of mandates (of course, provided that they are employees and not self-employed).
Conversely, the members of the employer’s delegation for the works council and health and safety committee (other than the “employer” itself) must be chosen from the list of leading personnel in the company.
Seeing their duty of impartiality, neither the person of trust (vertrouwenspersoon/personne de confiance) within the company (in the context of the procedure on harassment at work), nor the health and safety advisor may be part of the employer’s or employees’ delegation for the works council or health and safety committee.
The employer may decide how many employer representatives it wishes to appoint, so long as their number does not exceed that of the employees’ delegation. However, we typically advise companies to appoint a sufficient number of employer representatives in order to make sure that there is always someone present to represent the employer.
Also, even though there is no requirement to appoint as many employer representatives as there are employee representatives, a double majority (ie, a majority in both delegations or a majority within the works council as a whole and within the group of employee representatives) will sometimes be required. This is, for example, the case when the works council nominates the company auditor for appointment by the shareholders, which requires a majority within the works council as a whole, as well as a majority within the group of employee representatives.
Their mandate in principle also runs for four years, provided that they do not lose their position as a member of the leading personnel. They continue in function until the candidates elected at the next social elections take up their positions.
Who are the leading personnel in a company?
The legal definition of leading personnel comprises two levels of people (and is limited to those two levels only):
- Level 1: Employees or self-employed persons who are in charge of the daily management of the company and who are authorised to represent and bind the company.
- Level 2: Employees (but not self-employed persons) who are immediately subordinate to the persons in level 1 but only if they are also charged with daily management duties.
Daily management is limited to the effective management of the company, ie the decision-making power inherent to the employer itself. Daily management therefore concerns the effective day-to-day, independent, and continuous management of the company, or an important department thereof. Therefore, it is not sufficient for an employee to merely provide advice or assistance to their level 1 superiors to qualify as leading personnel. They also need to have the power to exercise, alongside their level 1 superiors, a significant level of management authority or responsibility over the company or an important part of the company.
Level 1 personnel may consist of a single person, for example the CEO, or a group of people who perform the daily management tasks in a collegiate manner, such as an executive committee, provided that no member of that body is subordinate to anyone else.
The HR director, sales director, finance director etc. will typically also qualify as leading personnel to the extent that they are charged with part of the daily management of the company and are directly subordinate to level 1 persons. For example, the Brussels labour court decided that a marketing director who reports directly to the CEO, who manages the internal and external communication and marketing of the company, handles significant budgets, and has authority over a number of other employees who they can hire and fire, is considered a member of the company’s leading personnel.
A personal assistant to the CEO, on the other hand, will generally not be regarded as a member of the leading personnel, even though they are directly subordinate to a level 1 person, as they will typically not be charged with part of the daily management of the company.
Someone who performs day-to-day management tasks but falls outside of level 1 and 2 (eg, a third level) can also not be considered a member of the leading personnel.
How can you prepare for the social elections?
At the latest on day 150 prior to election day (ie, between 15 and 28 December 2023 depending on the election date set within your company) (day X – 60), you must communicate to the competent employee representative body the draft list of leading personnel (ie, a list of functions, but only with an indicative list of names). Consultations are then held on this list.
On day 125 prior to election day (ie, between 9 January and 22 January 2024) (day X – 35), you must post the functions and indicative names that qualify as leading personnel. Finally, on the 90th day prior to election day (ie, between 13 February and 26 February 2024) (day X), you must post the final list of names qualifying as leading personnel.
As indicated above, what will be decisive to assess whether people qualify as leading personnel is the employee’s actual role. But title, job description and organisational chart position also matter, so these should be updated regularly to match the person's true and intended role in the company. A clear job description and organisational chart showing daily management responsibilities can also help avoid disputes.