Social Elections 2024: Who are the executives in a company and why is this concept important?

The term 'executive personnel' (kaderleden/cadres) is legally defined as white-collar employees, apart from the leading personnel, who have a higher position in the company that usually requires a degree of a certain level or equivalent professional experience.

The key feature is the higher nature of the position, either because of the power delegated to the employee, or because of the content of the duties entrusted to the employee.

In practice, key factors in determining whether an employee is part of the executive personnel are leadership, autonomy, delegated authority, and the right to take initiative. That being said, employees who perform high-level tasks that imply a certain level of autonomy, for example, in a research department, are also generally considered executive personnel, even if they lack any real authority.

The way Belgian courts have ruled on this point has been fairly consistent and stable over the years. The courts tend to make an assessment based on the person’s actual role, and how it fits within the organization. They also typically consider the company's particular characteristics and how it is organized.

There is no limit to the number of executives within a company and the nature of the company may justify a relative high number of executives (for example a high-tech company).

The designation of a function during the previous social elections as an executive function is only indicative and the courts are not bound by such designation. That being so, judgments do tend to follow the classification made during the previous social election if they establish that no new elements justify a change of position. Likewise, as the social election procedure is a public order matter, the courts are not bound by prior agreements with trade unions, but they may accept such prior agreements if they are based on objective elements and comply with the law.

Importance

If the company employs at least 15 executives (excluding leading personnel) on day 90 prior to election day (ie, a day between 13 February and 26 February 2024 depending on the exact election date within the company) (day X), they may claim a separate representation on the works council.

Always provided that the company employs at least 15 executives on that 90th day prior to election day (day X), this category of the workforce is allocated 1 or 2 additional mandates (ie, mandates in addition to the normal white-collar and/or blue-collar representations), depending on whether the company employs less or at least 100 executives on that same day.

As a technical point, it must be noted that the company’s leading personnel (leidinggevend personeel/personnel de direction) is not taken into account in determining whether the threshold of 15 executives has been reached. But, when that threshold has been met and a separate representation must thus be organized, the number of members of leading personnel must be added to the number of executives to determine the allocation of executive personnel mandates (1 or 2).

If less than 15 executives are employed by the company on that day, the executives cannot claim a separate representation and they are added to the group of white-collar employees for the purpose of the social elections procedure.

The lists of executives may be nominated by the representative trade union organizations ABVV/FGTB, ACLVB/CGSLB and ACV/CSC as well as by:

• NCK/CNC, ie the representative organization of executives; and/or
• company executives themselves (so-called ‘house lists’) provided that at least 10% of company executives support the list, with a minimum of 5 signatories supporting this list if the company has less than 50 executives or at least 10 signatories if it employs less than 100 executives (it being noted that an executive may only support one single list).

Not relevant for Health and Safety Committee

The concept and category of ‘executive personnel’ is only relevant for companies that must organize elections for the establishment of a works council. Executive personnel do not have a separate representation in the Health and Safety Committee.

How can you prepare?

At the latest on day 150 prior to election day (ie, between 15 December 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 the executive personnel (ie, a list of functions, but only with an indicative list of names). Consultations are then held on this list. Companies with less than 100 employees and/or less than 30 white-collar employees do not have to provide this information.

On day 125 prior to election day (ie, between 9 January 2024 and 22 January 2024) (day X – 35) you must post the functions and indicative names that qualify as executive personnel. Subsequently, on the 90th day prior to election days (ie, between 13 February 2024 and 26 February 2024) (day X), you must post the final list of names qualifying as executive personnel.

As indicated above, what will be decisive when assessing whether to categorise a function as an executive function is the employee’s actual role. Level of authority, leadership, autonomy, responsibility over budgets, required skillset etc. may all be considered. Title, position on the organizational chart and job description will also play a role, so it is important to keep these up-to-date and reflective of the actual situation.