Determining the TBU at the start of the social elections process.
The 2024 social elections are scheduled for 13-26 May, when workers will elect their representatives on the works council and the health and safety committee for the next four years.
Companies that are required to organise social elections must start the procedure in December 2023. More specifically, depending on when social elections will be organised within the company, opening day of the formal social elections process will fall between 15 and 28 December 2023 (X – 60).
One of the very first steps on that opening day of the formal social elections process is providing information to the competent employee representatives about the “technical business unit” (TBU) at the level of which the employer intends to organise social elections.
The TBU is traditionally defined as a group of employees that share a feeling of togetherness or put differently, a group that is characterized by a feeling among those employees of belonging to the same community of people that is governed by its own rules. As such, the TBU will not necessarily coincide with the legal entity of the employer, but may, depending on the circumstances, cover only part of the legal entity (eg, a specific site) or multiple legal entities (eg, in a group context).
Accordingly, whether a grouping qualifies as a TBU depends on economic and social criteria. In the case of doubt, the social criteria will prevail.
Economic factors include whether the unit has its own financial, managerial, and operational autonomy and flexibility. Social factors include whether the unit has its own HR policy, is located far from other units, has a distinct remuneration policy, caters to different social segments, uses a different language, and negotiates social matters independently.
Finally, TBUs may be different for the works council and the health and safety committee. In effect, given that they have different finalities and responsibilities, social and/or economic cohesion may be different for these bodies.
How to determine the TBU?
Determining the TBU is not a straightforward exercise, as it requires a case-by-case analysis of the specific situation and characteristics of your company.
The general principle is that the TBU should reflect the economic and social reality of your company, and not necessarily its legal structure. However, the legislator has created a legal presumption that several legal entities are considered, until proven otherwise, to form one single TBU, if proof can be provided that:
- these legal entities are (i) either part of the same economic group or are controlled by the same person or by persons economically linked to each other, or (ii) these legal entities have the same activity or mutually aligned activities; and
- elements exist that point to a social cohesion between these legal entities.
This presumption may only be invoked by employees or the trade union organisations representing them, but not by the employer. The employer can however prove that no combined TBU exists, based on the economic and social criteria.
TBU must be established by the employer
As indicated above, employers must inform their employee representatives about the TBU(s) they have defined for their company by day X-60 of the election calendar (ie, between 15 December and 28 December 2023, depending on the date of the elections within your company). Between day X-60 and X-35, employers must then consult with the works council, the health and safety committee, or in their absence, the trade union delegation, on the number and description of the TBUs. By day X-35 (ie, between 9 January and 22 January 2024), employers must announce their final decision on the determination of their TBU(s).
If any trade union organisation or employee disagrees with the employer's decision determining the TBU(s), they can challenge that decision before the Labour Tribunal by day X-28 (ie, between 16 January and 29 January 2024). The Labour Tribunal will have the final say on the matter and can consider any relevant evidence.
