In order to help employers secure their upcoming elections, Fieldfisher's employment law team has drawn up an overview of the latest rules and case law on the organisation of professional elections.
I. The company agreement defining the number of separate establishments within the company
A number of clarifications have been given regarding the agreement that must be negotiated prior to the pre-electoral company agreement in order to define the number of separate establishments within the company. In the absence of trade union delegates in the company, the employer will have to take a unilateral decision.
1. The company agreement defining the number of separate establishments is a prerequisite
First, the Ministry of Labour had the opportunity to specify that the negotiation of a company agreement defining the number of separate establishments is a compulsory prerequisite for the organisation of professional elections, even when the company has only one geographical site (Ministry of Labour, CSE - 117 questions and answers, 2019, question n°32).
It is therefore important not to forget this fundamental step.
It should be noted that the case law has not yet had the opportunity to specify what will happen to the indefinite duration acts (company agreement or unilateral decision of the employer) signed within the framework of the previous elections in order to define the number of separate establishments within the company.
In the context of the renewal of the CSE, can the employer rely on the provisions negotiated during the previous electoral cycle?
Several different cases must be considered:
- If the number of establishments was previously determined by means of a company agreement, the agreement could continue at the end of the terms of office of the members of the CSE if no changes have been made to the organisation of the company's establishments. On contrary, if the previous division no longer corresponds to the reality on the ground, the employer will have to denounce the agreement and renegotiate a new one so as not to have the elections declared null and void.
- In the event of recourse to a unilateral decision by the employer to define separate establishments, the Ministry of Labour has stated that this unilateral decision "is only valid for the electoral cycle, the employer must initiate a new negotiation at the end of each cycle" (Ministry of Labour, CSE - 117 questions and answers, 2019, question n°27). The employer will therefore have to take a new unilateral decision even if the previous one was taken for an indefinite period.
2. The criteria for defining a separate establishment
The Paris Court of Appeal had the opportunity to specify that the criteria used in the agreement concluded with the unions are the sole responsibility of the social partners (CA Paris 18 February 2021 n°19-14084 RJS 6/21 n°314). The parties to the agreement can therefore freely define the separate establishments by elaborating their own criteria.
In the absence of an agreement, the employer determines the number of establishments, taking into account the autonomy of the head of the establishment, particularly with regard to staff management.
Case law has had the opportunity to specify what could characterise this autonomy.
The judges take into account in particular the extent of the delegations of competence of the head of the establishment as well as his sufficient autonomy with regard to the management of the personnel and the execution of the service (Cass. Soc. 19 December 2018 n°18-23.655).
The Court of Cassation subsequently considered that the centralisation of support functions or the existence of management procedures defined at the level of the head office are not of such a nature as to exclude in themselves the management autonomy of the heads of establishments" and that management autonomy is characterised as soon as there are delegations of power in various areas of competence and establishment agreements (Cass. Soc. 11 December 2019 n°19-17.298).
A thorough examination of the delegations of authority is therefore necessary to determine the existence of separate establishments.
II. Electronic voting
The Court of Cassation has specified that in the absence of trade union delegates in the company, the employer could unilaterally decide to implement electronic voting without having to organise negotiations beforehand (Cass. Soc. 13 Jan. 2021, n°19-23.533).
III. Parity on candidate lists
The obligation to present a list of candidates with an equal proportion of women and men has also been clarified in recent years by the Court of Cassation.
In particular, the High Magistrates have indicated that this provision only applies if several seats are to be filled in a college (Cass. Soc. 9 May 2018 n°17-14.2018). Moreover, when the rounding rules lead to the total exclusion of the representation of one of the two sexes, the list may only include a single candidate or several candidates of the over-represented sex (Cass. Soc. 11 December 2019 n°18-26.568).
Moreover, and very surprisingly, the Court of Cassation considered that the parity rule did not apply to independent candidates presented in the second round of professional elections (Cass. soc. 25 November 2020 n°19-60.222; Cass. soc. 27 January 2021 n°19-23.732; Cass. soc. 31 March 2021 n°19-24.134; Cass. soc. 10 November 2021 n°20-17.306).
IV. Participation in elections of staff who can be assimilated to the employer in elections
Until now, staff who could be assimilated to the employer were excluded from the electorate.
The Constitutional Council ruled on 19 November 2021 (QPC No. 2021-947) that this rule was unconstitutional. The so-called "Labour Market Act" of 21 December 2022 therefore amended this rule.
From now on, the Labour Code stipulates that staff who can be assimilated to the employer (in particular senior executives, human resources managers or directors) must be considered as voters. They must therefore be included in the list of voters, although they are not eligible.
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