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Workplace Representation

France has a complex system of employee representation at workplace level, through both the unions and structures directly elected by the whole of the workforce. Where trade unions are present, the key figure will be the trade union delegate.

France has a complex system of employee representation at workplace level, through both the unions and structures directly elected by the whole of the workforce. Where trade unions are present, the key figure will be the trade union delegate.

There are a large number of structures which provide representation for employees in France, both for trade unionists and for the whole of the workforce.

Trade unions present in a company are normally able to set up trade union sections, which bring together their members at the workplace and have specific legal rights. In addition, provided they have sufficient support (see below), unions can appoint trade union delegates in companies with more than 50 employees. These union delegates have a role both within the union and on behalf of all employees.

The representation of the whole of the workforce on most issues is provided by two separate elected bodies, which have specific legal rights and duties. These are the employee delegates (DP) and the works council (CE), elected either at company level or at plant level. In addition, there is a separate committee which deals with health and safety issues (CHSCT).

In larger companies, the employee delegates, the works council and the health and safety committee are normally separate, though the same individuals can be elected to both. However, in companies with between 50 and 300 employees (until recently 200), the employer can decide that the functions of all three bodies should be combined in a single common representative body (DUP). In addition, in companies with more than 300 employees, the employer and the unions (provided they represent a majority of the workforce) can agree that the three employee representative bodies can be combined in a way which best suits their needs. However, although the structures can be changed by agreement, the rights and responsibilities of the bodies remain untouched.

The possibility of combining these bodies in this way was introduced in legislation on social dialogue and employment, enacted in August 2015, which also increased the threshold for the common representative body (DUP) to 300.[1] Up to that point, the upper limit for was 200 employees, and it only brought together the works council and employee delegates, not the CHSCT health and safety committee.

Employee representative structures are present in most medium and larger companies. Figures from DARES, the research arm of the ministry of labour, for the period 2010-11, show that in private sector workplaces with 50 employees or more, 59% had both elected representatives and one or more trade union delegates, while 40% had just elected representatives. Only 6% of workplaces of this size had no representative structures. The percentages are lower for smaller workplaces, but, even in workplaces with between 20 and 49 employees, 20% had both a trade union delegate and elected representatives and 45% had just elected representatives. Only 35% had no form of representation. In addition, around 70% of workplaces with 50 or more employees had a health and safety committee (CHSCT).[2]

Frequently the same individuals take on several roles. The DARES figures show that in 59% of the workplaces with 50 or more employees and employee representatives, the representative held more than one position. Where trade unions are present they play a crucial co-ordinating role and the trade union delegate is a key figure.

The legislation on social dialogue and employment, enacted in August 2015, also provides for employee representation covering very small companies for the first time. Companies with fewer than 11 employees (the threshold for employee delegates), will be covered by regional bodies of made up of equal numbers of employer and union representatives, with the members drawn from these very small companies.

In addition to these representative structures, individual workers have “the right of expression” about their working conditions. The exact form in which this right is organised is left to local negotiations with the unions, but might involve occasional meetings of groups of workers with their supervisors.

Numbers and structure

Trade unions present in a company are normally able to set up trade union sections, irrespective of the number of union members or employees, and because of the structure of French trade unionism there are often several trade union sections in the same company.

However, legislation introduced in 2008, which has come into effect gradually over several years, has slightly changed the rules in this area. The law now says that union rights vary depending on whether or not the union is “representative within the company”. To be representative within the company a union must meet a number of criteria such as independence and financial transparency. However, the most important factor is whether it has the support of at least 10% of the workforce, as indicated by the votes in the first round of the elections for the works council or employee delegates (see below).

Where a company has more than 50 employees, the unions that are representative within it (see above), have the right to nominate a trade union delegate (DS), who has a number of important rights. However, under the 2008 rules, individuals who are to be trade union delegates must themselves have the support of at least 10% of the workforce. (There are exceptions to this rule in some circumstances, such as where the previous individual with this level of support has left the company.)

Unions that are not representative within the company do not have the right to a trade union delegate, but only what is called a “representative of the trade union section” (an RSS) who has significantly fewer powers and rights.

The 2008 rules on representativeness appear to have led to a slight reduction in the proportion of workplaces with union delegates (DS). In private sector workplaces with 20 employees or more, the percentage with union delegates, which increased from 33% in 1999 to 38% in 2005, has now fallen back to 35% (2011). On the other hand, 4% of workplaces of this size now say that they have a representative of a union section (RSS). There has also been a reduction in the number of union delegates from different unions in the same company. The proportion of workplaces with more than 50 employees which have three of more unions with a union delegate has fallen from 20% in 2005 to 16% in 2011. The proportion of workplaces with two unions, each with a union delegate, has remained stable at 26% in both years, as has the proportion with just a single union, at 17%.[3]

The two bodies which represent the whole of the workforce on issues other than health and safety, employee delegates and the works council, have different thresholds and numbers of members. The precise number of members for the new common representative body (DUP), which as result of the August 2015 legislation will also include the health and safety committee (CHSCT), has yet to be fixed by government decree.

Employee delegates, whose main role is to take up the concerns and complaints of the employees with the employer, can be elected once there at least 11 employees (see table).

Number of employees

Number of employee delegates

11-25

1

26-74

2

75-99

3

100-124

4

125-174

5

175-249

6

250-499

7

500-749

8

750-1,000

9

Above 1,000 there is one extra delegate for each 250 further employees. Where the employer has decided that that the employee delegates should also act as the works council, a slightly larger number of individuals are elected.

The employer should meet all the employee delegates once a month and they can also ask for other meetings if matters are urgent. In addition, employee delegates can meet the employer on an individual basis. Earlier DARES figures, which provided greater detail on the type of employee representation, show that employee delegates are the most widely found form of employee representation – 72% of all private sector workplaces with more than 20 employees had them in 2004-05, and this figure rises to 87% in companies with 50 employees or more.[4]

Works councils should, by law, be set up in all companies with at least 50 employees (see table). In practice they exist in 81% of the companies that should have them, according to the same DARES figures.

Number of employees

Number of works council delegates

50-74

3

75-99

4

100-399

5

400-749

6

750-999

7

Thereafter the number of delegates increases by one for each extra 1,000 employees until 5,000, then by one extra delegate for each 2,500. The maximum number of delegates, with 10,000 or more employees, is 15.

The works council is a joint body. It is chaired by the employer or a representative of the employer, but the secretary is an employee member elected at the first meeting of the works council by the other representatives. In larger companies it must set up a number of sub committees covering: training (200 employees and above); housing (300 and above); and economic affairs (1,000 and above). It can also set up additional sub committees if it wishes.

The works council should meet at least once a month.

Tasks and rights

The main task of the trade union section is to defend the interests of its members and to promote the union within the workplace. Its legal rights include: collecting trade union subscriptions during works time; access to notice boards; distributing trade union leaflets and organising meetings. These rights can be improved through local agreements. Where the union is representative within the company (the key point is that it should have the support of 10% of the workforce – see above), it can appoint a union delegate (DS). Where it is not representative it can appoint a representative of the trade union section (RSS).

The trade union delegate (DS) has two main roles: to represent the union, both to the workers and to the employer, for example through distributing material and collecting contributions; and to defend the professional and economic interests of the workforce as a whole. Unlike the employee delegate, who is concerned to see that the existing rules and agreements are applied properly, the role of the trade union delegate is to seek to improve the existing arrangements.

One way of doing this is through negotiation, and there are large number of topics where the employer has a duty to negotiate, if a trade union delegate is present in the company (see section on collective bargaining).

The trade union delegate will also normally attend meetings of the works council, as each union with representatives on the works council is able to nominate a union representative, and this will normally be the union delegate. Finally, the trade union delegate is also involved with the elected employee delegates, as they can ask for a trade union representative, normally the trade union delegate, to be present in their meetings with the employer.

The representative of the trade union section (RSS) has a much more limited role. Like the union delegate, he or she can distribute material and collect union subscriptions, but negotiation is only possible in very unusual circumstances – ­ where there is no union delegate and no other employee representative with the right to negotiate. Any agreement signed by the representative of the union section must be also approved by a majority of the workforce. (This is not the case for agreements reached by the union delegate.)

The main role of the employee delegate is to take up the individual and collective concerns and complaints of the employees. These can cover pay, the correct application of France's extensive labour laws, and the implementation of collective agreements. They can also be involved in interpersonal problems, where these are linked to work issues.

The employee delegates used to have no right to negotiate. But, as a result of legislation, introduced in stages since 2004, they or the works council can now do so in certain circumstances where there is no trade union delegate and no individual employee mandated by the union to negotiate, although this remains the exception (see section on collective bargaining).

The works council has the right to be informed and/or consulted on a range of issues and it runs the company’s social facilities like canteens. As noted above, it can also negotiate collective agreements in certain unusual circumstances.

The information rights cover both social (labour) and economic and financial issues. The social issues include: information on the number and type of employees; reasons for using temporary, agency or part-time staff; employment forecasts; the relative position of men and women; changes in collective agreements; and training. The economic and financial information to be provided includes details of: ownership, sales and profits; production levels; investment and state aid; the use of sub-contractors; the structure of the wage bill; plans to change production equipment or methods; and an overview of future prospects. The works council should be given the same information as the shareholders and receive the auditor's report.

The June 2013 law on employment security provides for this information, as well as additional information for larger companies, to be supplied in the form of a database, covering the two previous years and the current year, as well as the prospects for the three years to come. The database must be updated regularly. Companies with 300 or more employees had to set up this database within a year of the legislation coming into force (by 14 June 2014). Smaller companies had two years to do this.

The consultation rights of the works council are more limited. There is a general requirement that the employer must consult the works council in advance if measures are planned which significantly affect: the size and structure of the workforce; working time; and working conditions, including training. Specific issues on which the works council must be consulted include: proposals to reduce the workforce; important structural changes, such as mergers; research and development policy; large scale redundancies; new technology; working conditions and working time; training; and health and safety.

In addition, as a result of the June 2013 legislation, the works councils must be consulted annually on the strategic direction of the company and its consequences for the company’s activities, employment, need for skills and use of sub-contractors and temporary workers. In companies with at least 50 employees, the works council must also be consulted specifically over the company’s use of tax savings provided under a government scheme to aid competitiveness, known as CICE.

The August 2015 legislation on social dialogue and employment has attempted to simplify the process by providing that the 17 topics subject to information and consultation should be grouped into three areas: the strategic orientation of the company; its economic and financial situation; and its social policy and conditions of work and employment. It

The fact that the company is obliged to consult the works council does not mean that it must agree before any planned changes go ahead. There must simply be an opportunity for the works council’s view to be heard, normally involving written submissions by the employer, and a delay – not less than 15 days – before the decision is taken to allow a dialogue between the two sides. This means that the process of consultation is normally procedurally very precise and formal, but in practice may change nothing. Management is obliged to listen to the views of the employee representatives, but it may continue with its plans regardless.

One exception has been the area of collective redundancy and restructuring, where a number of works councils have turned to the courts to block their employers’ proposals, arguing that adequate consultation has not taken place. In a number of cases this has led to long delays before the employers have been able to implement their plans. Legislation introduced in January 2005, potentially offers an alternative through the possibility of signing so-called ‘method agreements’ with the unions (not the works council). These set out exactly how consultation should take place, but also mean that the works council can no longer take the issue to the courts.

The 2013 law on employment security made further changes to the law on redundancy, giving employers the choice between two procedures. One is to negotiate an agreement with the unions on the redundancy procedure and the measures to be taken to improve employability and compensate employees losing their jobs. This agreement it must be signed by unions with a majority of votes in the previous works council election. The other procedure is for the employer to send the redundancy proposals to the appropriate administrative authorities for approval. The proposals can only be sent once the period of consultation with the works council has ended, and the authorities have 21 days to take their decision. In contrast with the previous position, the authorities are no longer required to consider whether the redundancies are economically justified, only whether the correct procedures have been followed, and whether the measures proposed to improve employability and compensate employees are appropriate, given the circumstances.

The areas where the works council is required to agree are limited to a very few specific issues, such as changing the body providing company medical services.

Works councils also run the social and cultural activities of the company such as the operation of canteens, holiday homes for employees, company libraries and sports and social clubs.

Election and term of office

The trade union delegate (DS) is not elected by the union members at the plant (the union section) but is appointed by the union, either at local, departmental or national level. However, as already noted, the individual appointed must already have been a candidate for either the works council or as an employee delegate and must have received at least 10% of the votes cast in the first round of the elections. Only unions which are representative within the company have the right to appoint a union delegate. Unions that are not representative have the right to appoint a representative of the trade union section (RSS). In both cases the employer must be informed as to whom the union has chosen.

Employee delegates, members of the works council and members of the common representative body (DUP), if one exists, are elected, and the procedure for all three is similar and gives an important role to the unions.

In the first round of elections, only unions can put forward lists of candidates. (There are certain criteria that unions must meet to be able to put forward candidates, such as being independent and existing for at least two years, but they are less restrictive than was the case before the legislation introduced in 2008.)

If these union-nominated candidates together get the votes of at least half of those eligible to vote, then the election result stands and the seats are allocated on a proportional basis. But if half or more of the possible voters fail to vote for the candidates put forward by the unions, then there is a second round within 15 days where nominations are open to all, including those who are not trade union members. In practice, votes for non-union candidates account for around a fifth to a quarter of all votes cast and recently that number has been falling.

Depending on size, the whole workforce either votes together or in two or more separate groups, known as “colleges”, representing different grades of worker. The August 2015 legislation has introduced a new requirement that the lists of candidates being proposed for these representative positions should reflect gender balance of the employees represented.

Employee delegates and works council members are normally elected for four years (as are DUP members) but collective agreements at either industry or company level can provide for a shorter period – down to two years.

Protection against dismissal

Trade union delegates, and those who have been trade union delegates during the previous 12 months, can only be dismissed following an interview with the employer, consultation with the works council and with the permission of the local labour inspector.

The same protection also applies to employee delegates and works council members, although in theses case the protection only lasts for six months after the individuals have ceased to hold these positions.

Despite these protections, figures from DARES show that a substantial number of protected individuals are dismissed each year. In the period 2002 to 2004, 22% of all workplaces with 50 employees or more requested that a protected employee be dismissed.[1]

The August 2015 legislation on social dialogue and employment has further strengthened the protection for trade union delegates and employee representatives, whose time off for the duties associated with these roles amounts to 30% or more of their contractual hours. The law provides that their pay must increase in line with that received by other employees with similar status and seniority.

Time-off and other resources

Individual members of trade union sections have no time-off rights, but where the union is representative within the company – the key condition is that it has the support of 10% of the employees – it has the right to 10 hours per year to prepare for negotiations if the company employs 500 or more and 15 hours per year if it employs 1,000 or more. In addition, in workplaces with 200 employees or more, the employer must provide a single room for all the trade union sections – whether representative within the company or not – and, from 1,000 employees, each union that is representative within the company has the right to its own room.

Trade union delegates (DS) have rights to paid time-off. The amount varies with the size of the plant or company: 50 to 150 employees – 10 hours a month; 151 to 499 employees – 15 hours a month; 500 employees or more – 20 hours a month. The representatives of the union section (RSS), from unions that are not representative within the company, have a right to four hours paid time-off a month if the company has 50 or more employees.

Employee delegates are entitled to 15 hours of paid time off a month (10 hours if there are fewer than 50 employees), and this can be added to other time off if they also have other functions. In companies where the functions of works council member and employee representative are combined, the total time off for these two functions is limited to 20 hours. Employee delegates have the right to the non-exclusive use of a room and to put up notices.

Works council members get 20 hours a month paid time off to carry out their duties. They also have up to five days’ paid time off for training during their period of office.

The time-off rights of a member of an existing common representative body (DUP), combining only the employee delegates and the works council, are set at 20 hours a month. The time off provide to members of the new-style DUP, introduced by legislation, enacted in August 2015, which will also include the health and safety committee, have yet to be fixed by government decree.

One important aspect of all these time-off rights is that they can be combined. An individual who is a trade union delegate, an employee delegate and a member of the works council in a larger company would get 55 hours a month.

The works council has substantial resources. It has the exclusive use of a room together with the equipment and material necessary for it to function effectively – all provided free by the employer. The employer must also provide the works council with a budget of 0.2% of the total wage bill for its operations, and the works council can employ its own staff if it wants to and has enough money. This budget is in addition to any sums provided by the employer to run social and cultural activities in the company.

Another important right is the right to use financial experts. They can be called in, at the company's expense, to analyse the annual accounts and to look at financial forecasts. They can also examine proposals for large-scale redundancies, or other issues which the works council thinks are cause for concern. In companies with 300 or more employees the works council can also call in a technology expert, if necessary.

In addition, under the 2013 legislation, works councils have the right to ask a financial expert to look at the company’s annual presentation of its strategic direction. Unless otherwise agreed with the company, the works council pays 20% of the cost of this expertise, up to the limit of one third of its total budget.

These rights are not always taken up, but the fact that the choice is given to the works council has resulted in the growth of national organisations of experts linked to the main trade union confederations.

Representation at group level

In cases where a company has several plants, each with its own works council, a central company works council (CCE) should be set up to bring together the representatives from the individual plant works councils. In companies with several plants and more than 2,000 employees the unions can also have a central trade union delegate.

Where there are several companies within a single group, a group works council should be established covering all the subsidiaries and other companies controlled by the group. It must meet at least once a year and has primarily information rights. Crucially members are chosen by the unions from the works council members on the basis of their support in the previous works council elections. Trade union delegates have no automatic right to sit on the group works council, but many companies have reached agreements which permit this.

References:

[1] Licenciement des salariés protégés et gestion de la main-d’œuvre par les entreprises : une analyse des pratiques, DARES, 2009

[1] LOI n° 2015-994 du 17 août 2015 relative au dialogue social et à l'emploi

[2] Les relations professionnelles au début des années 2010:entre changements institutionnels, crise et évolutions sectorielles, by Maria-Teresa Pignoni, Émilie Raynaud, DARES April 2013

[3] ibid

[4] Les institutions représentatives du personnel : davantage présentes, toujours actives, mais peu sollicitées par les salariés, by Olivier Jacod, DARES 2007

L. Fulton (2015) Worker representation in Europe. Labour Research Department and ETUI. Produced with the assistance of the SEEurope Network, online publication available at http://www.worker-participation.eu/National-Industrial-Relations.