In recent times, Law No. 367/2022 – the Law of Social Dialogue – has undergone various modifications, and as a result, the procedure for electing employee representatives has been changed.
According to Article 57, paragraph (1), at employers where a minimum of 10 employees are employed and where there is no trade union, the interests of the employees can be promoted and defended by their representatives, who are elected and mandated specifically for this purpose.
According to the new modifications, any intervention or hindrance of the election procedure by the employer is prohibited. The employer, upon the request of the employees, can only facilitate the conduct of the election procedure by providing a space for discussions in this regard, granting time off for meetings, providing ballot papers, etc.
In this regard, we specify that there is no obligation to elect representatives imposed on the employees, it is their choice. The employer cannot be held responsible if the employees choose not to participate in negotiations, provided that the employer can demonstrate that they have fulfilled their obligation to initiate collective bargaining for the purpose of concluding a collective labor agreement.
The procedure or regulations, as applicable, for the election of representatives will be developed by an initiative group consisting of employees. Once these have been established, they will be communicated to the employer, who within a maximum of 10 days of receiving them, will inform all employees about them and the conditions for conducting the election of representatives.
Therefore the employer will not draft any document regarding this procedure, as it will be prepared by the initiative group.
The employer will no longer create a list of all employees expressing their consent regarding the number of representatives. However, the employer will draft its internal decision regarding the number of representatives.
The initiative group will be responsible for publishing the announcement stating the deadline for employees to submit their candidacies and the location where they should be submitted.
The number of representatives is determined by mutual agreement with the employer, based on the total number of employees. However, if an agreement cannot be reached, the new law specifies that the number of representatives cannot exceed:
a) 2 representatives for employers with fewer than 100 employees;
b) 3 representatives for employers with 101-500 employees;
c) 4 representatives for employers with 501-1000 employees;
d) 5 representatives for employers with 1001-2000 employees;
e) 6 representatives for employers with over 2000 employees.
These representatives are elected with the vote of at least half plus one of the total number of employees. It is important to note that for the election of representatives, it is necessary to have the vote of at least half plus one of the total number of employees in the unit, not just those present during the election of representatives.
Following the voting stage, the initiative group records in the minutes of the general assembly of employees the representatives and their responsibilities, the duration and limits of their mandate, and the votes cast for each candidate, in case there are multiple candidates or for the elected representative.
To validate the elections, the aforementioned number of votes must be respected. It is recommended to organize the voting process until the representatives are elected with at least 50% plus one of the total number of employees.
These minutes will be signed by the members of the initiative group, and a list of all employees who participated in the general assembly will be attached to it.
The term of office for employee representatives remains at 2 years, starting from the date of their election.
The representatives will fulfill their mandate within their regular working hours, it will not be considered overtime work. They will be remunerated according to their individual employment contracts, without any additional compensation. The number of hours they will devote to fulfilling their mandate will be established through a collective labor agreement, if one exists, or through direct negotiation with the company’s management in its absence.
Individuals who hold leadership positions that ensure the representation of the administration in relation to employees or participate in decision-making at the unit level cannot be elected as employee representatives.
Employee representatives cannot be dismissed, and their employment contracts cannot be modified throughout the entire duration of their mandate for reasons related to the performance of their duties.