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Workplace Representation

Employee representation at workplace level in France is provided through both the trade unions and structures directly elected by the whole of the workforce, although, where unions are present, the key figure will be the union delegate. The directly elected structures were fundamentally revised in the private sector in 2017, when three separate representative structures were merged into one, with the possibility of the tasks normally carried out by the separate union structure also being incorporated into new body in certain circumstances.

Employee representation at the workplace in France is subject to detailed regulation, covering both the union structures and those for the whole of the workforce.

 

Trade unions present in a company or other organisation 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 with specific powers in workplaces with more than 50 employees. These union delegates have a role both within the union and on behalf of all employees.

 

The latest survey from Dares, the research arm of the ministry of labour, shows that overall 37% of workplaces with 11 or more employees have a trade union delegate. This is equivalent to 64% of employees in workplaces above the 11-employee threshold. [1]

 

The representation of the whole of the workforce is now largely provided outside public administration by single elected committee, the Social and Economic Committee (Comité Social et Économique – CSE). This brings together three previously separate bodies representing employees at the workplace – the employee delegates (DP), the works council (CE) and the health and safety committee (CHSCT). It is only in larger companies, those with 300 or more employees, that a sub-committee of the Social and Economic Committee dealing specifically with health, safety and working conditions (CSSCT) must also be formed

 

The merger of these three bodies into a new single committee was one of the changes introduced by the government of Emmanuel Macron in September 2017 as Ordonnance No. 2017-1386.  The new committees, which must be set up in workplaces with 11 or more employees, began to be established on 1 January 2018, but where the term of office of the earlier bodies has not run out, the pre-2018 structure, with three separate employee representative bodies, will continue to exist on a temporary basis. However, it is intended that the new structure based on the Social and Economic Committee (CSE) will be universal outside public administration, by 1 January 2020. The merger of all three bodies, irrespective of the size of the workforce follows earlier developments which permitted the employer to choose to have a single representative body rather than three, but this was only possible, without majority union agreement, for companies employing 300 people or fewer. [2] This voluntary possibility resulted in 14% of all workplaces with these three bodies merging them into a single structure in 2017.[3] The merger now becomes obligatory in all workplaces with 11 or more employees.

 

There are, however, important differences in the role of the new Social and Economic Committee (CSE), depending on the size of the workforce, with the key threshold set at 50 employees (the former threshold for setting up a works council).

 

In companies with 11 to 49 employees, the role of the CSE is realtively limited. It is to present the workforce’s individual and collective complaints and claims to the employer and to monitor the company’s compliance with labour regulations. In companies with 50 or more employees, the CSE carries out these roles, but its rights go beyond this to allow the interests of the workforce to be taken into account when the company makes decisions  (see section on Task and Rights).

 

Below the 11-employee threshold for the setting up of a CSE, legislation on social dialogue and employment, passed in August 2015, provides for indirect employee representation covering very small companies for the first time. Companies with fewer than 11 employees are covered by regional bodies of made up of equal numbers of employer and union representatives, with the members drawn from these very small companies.  

 

As well as these structures, in companies with more than 50 employees with several separate workplaces, it is possible to reach a company-level agreement on appointing additional local representatives (représentants de proximité), primarily dealing with employees’ concerns around health and safety and working conditions. However, all the issues relating to their functioning, including number, powers, method of appointment and time off, are fixed by a company-level agreement, not the law.

 

Although the CSE will be the employee representative body in most companies, the Macron changes also provide for another possibility, the setting of a Company Council (Conseil d’entreprise – CE). This is where the unions agree, either through a company-level or an industry-level agreement that the normal functions of the CSE will be extended to include collective bargaining at company level, a task normally carried out by the union delegate.

 

Employee representation at the workplace in public administration has not changed in the same way. Here the structure of separate consultative committees with different roles, including specific health and safety committees, has been maintained, although the precise arrangements vary between the three areas of public service: central government (FPE), regional and local government (FPT) and the hospital service (FPH).

 

As the new Social and Economic Committees only started to be set up in January 2018, there are no statistics on their operation. However, figures on the earlier forms of employee representative structures are available in the report from Dares on the situation in 2017.[4] This shows that, in 2017, only two-thirds (67%) of private sector workplaces with 11 or more employees had employee representation. This is despite the fact that having employee representation is obligatory in all private sector workplaces of this size. However, this failure to comply with the legal requirements is concentrated entirely in smaller workplaces. All workplaces with 200 or more employees had elected employee representatives, while 96% of those with between 100 and 199 and 90% of those with between 50 and 99 employees had them. Where these bodies do not exist, the main reason for their absence is the lack of employees willing to stand, reported by 50% of workplaces without representation.  The fact that larger workplaces are more likely to have elected employee representatives than smaller ones means that the proportion of employees in workplaces with representation is 86%, well above the 67% of workplaces with representation.     

 

Under the pre-2018 structure the same individuals would sometimes be members of more than one of the three different elected representative bodies. And a separate report from  Dares shows that a fifth of representatives (19.7%) held two or more positions in 2017.[5] In addition, more than one in 10 (11.3%) combined a position as an elected representative, with that of a trade union delegate. Even if they are not a union delegate, the union link is clear, as more than half of all elected representatives (56.2%) are union members, and this percentage increases to two thirds (67.8%) in larger workplaces – those with 300 employees or more. Generally, where trade unions are present, they play a crucial co-ordinating role and the trade union delegate is a key figure.

 

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, following legislative changes initially introduced in 2008, union rights now 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 employee representatives (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) with a number of important rights. However, 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.)

 

The number of union delegates to which each representative union (with 10% support in the company) is entitled varies with the number of employees.

 

Number of employees

Number of union delegates for each representative union

50 to 999

1

1,000 to 1,999

2

2,000 to 3,999

3

4,000 to 9,999

4

More than 9,999

5

 

 

In smaller companies, those with fewer than 50 employees, representative unions can designate one of the elected members of the Social and Economic Committee (CSE) as their union delegate.

 

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.

 

Elected representation of all employees is now generally provided through the Social and Economic Committee (CSE). This must be set up in all private sector companies with at least 11 employees, as well as some organisations of this size in the public sector,  although its rights and duties vary with the number of employees, with two main additional thresholds, at 50 employees and 300. The Company Council (Conseil d’entreprise – CE), which can also exist, is a CSE with additional powers (see below).

 

The rules for counting employees are the same for all the thresholds. Permanent full-time workers and home workers are counted in full. Temporary workers and agency workers, provided they have been working for at least a year in the company, are counted pro-rata to the length of time they have worked in the previous 12 months. However, they are not included if they are replacing a permanent staff member who is absent or whose contract has been suspended, for example, because of absence on maternity or adoption leave. Part-time workers are counted pro-rata in line with their contracted hours as a proportion of standard hours of full-time staff. Some specific categories of employees, such as apprentices, are excluded from the calculation.

 

The CSE is normally set up at company level, but in cases where the company has at least 50 employees and at least two different workplaces, separate Social and Economic Committees should be set up at both the company and the workplaces. The arrangements must be agreed in a company-level agreement, with the support of unions representing majority of the workforce. Where there is no union delegate, the arrangements for setting up various CSE committees can be agreed with the majority of the employee members of the committee. Where no agreement can be reached, the employer can take a unilateral decision on the arrangements. However, this decision can be contested by the unions or the employee representatives, depending on the form the negotiations have taken, initially with the regional government office and ultimately in the courts.

   

Where a CSE has been set up, it is a joint body consisting of the employer, who chairs it and who may be accompanied by up to three colleagues, and elected representatives of the employees. The number of employee representatives is set out precisely in the legislation, starting with a single representative in companies with between 11 and 24 employees, rising in stages to 35 in a company with 10,000 employees.[6] For example a company with 500 employees will have 13 employee representatives on the CSE and one with 1,000 will have 17. There are the same number of replacement employee representatives (suppléants) as full employee representatives (titulaires). These replacement members stand in for full members if they are unable to participate.

 

Number of employees

Number of employee representatives

11 to 24

1

25 to 49

2

50 to 74

4

75 to 99

5

100 to 124

6

125 to 149

7

150 to 174

8

175 to 199

9

200 to 249

10

250 to 299

11

300 to 399

11

400 to 999

1 more for each additional 100 employees

1,000 to 2,499

1 more for each additional 250 employees

2,500 to 3,999

1 more for each additional 500 employees

4,000 to 9,999

Additional members although steps are uneven

10,000

35

 

As well as the employee representatives elected by the workforce (see below), in companies with fewer than 300 employees, the trade union delegate (DS) is also entitled to be a member of the CSE. In companies with 300 or more employees, each representative trade union organisation (in other words each union whose candidates have the support of at least 10% of those voting in the election of employee representatives) can send a representative to the CSE.

 

As well as the CSE, the law now allows that, where a company has at least 50 employees and at least two different workplaces, the agreement covering the operation of the separate Social and Economic Committees at company and workplace level can also provide for the appointment of local representatives (représentants de proximité). The number is set in the agreement and the individuals concerned may be members of the CSE, although this is not necessary.

 

In companies with between 11 and 49 employees, the employer should meet all the employee representatives on the CSE once a month and they can also ask for other meetings if matters are urgent. In larger companies, those with 50 employee or more, the frequency of meetings of the CSE is fixed in a company-level agreement, but, as a minimum, the CSE must meet once a month in companies with at least 300 employees and once every two months in smaller companies (those with between 50 and 299 employees). At least four of these meetings should deal with questions of health and safety, and there should also be a meeting after any accident or serious incident. External experts can attend meetings to provide support on issues relating to health and safety and working conditions.

 

In companies with more than 300 employees, a health, safety and working conditions committee (commission santé, sécurité et conditions de travail – CSSCT) must be set up to take on most of the health and safety responsibilities of the CSE. It must also be established in smaller companies if they operate in a particularly dangerous industry, or if the labour inspectorate decides that this is necessary.

 

The CSE should also choose one of its members to take responsibility for action against sexual harassment and sexist acts.

 

Other than the health, safety and working conditions committee (CSSCT), a company-level agreement in companies with more than 50 employees, can provide for the setting up of other sub-committees of the CSE. However, there are a number which are obligatory in larger companies. In companies employing  300 or more there must be: a training committee; a housing committee – to help employees gain access to housing; and an equality committee. In addition, in companies with 1,000 employees or more, an economic committee must be set up. Finally, reflecting the size of the budget that some committees manage (see below), a markets committee must be established, in companies with at least 50 employees and where the committee has resources of at least €3.1 million a year and assets worth €1.55 million. The markets committee evaluates suppliers with the aim of making the process more transparent.

 

In companies with at least 50 employees, the CSE chooses a secretary and a treasurer from among the employee representatives and the secretary works with the chair (the employer) in drawing up the agenda.

 

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 representatives on the CSE, who are 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 a 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 also has a right to attend meetings of the Social and Economic Committee (CSE).

 

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 unlike the trade union delegate (DS), the RSS cannot undertake collective negotiations.

 

As already stated, the tasks and rights of the Social and Economic Committee (CSE) vary according to the size of the company.

 

In companies with 11 to 49 employees, the role of the CSE is to present to the employer individual and collective complaints and claims regarding pay, the application of the labour code and other regulations, as well as the implementation of collective agreements. It also has a role in promoting the improvement of employees’ health and safety and working conditions, including the investigation of accidents and occupational diseases. If it wishes, the CSE can refer its concerns relating to the implementation of legal regulations, health and safety and other issues such as discrimination or sexual harassment to the labour inspectorate. It also has a right to warn (droit d’alerte) in cases where rights are being infringed or where there is a serious and imminent danger.

 

In addition, even in companies with fewer than 50 employees, the CSE has access to the register of employees, which includes details of qualifications and type of contract, as well as personal details like name and date of birth, and to documents giving details of actual hours worked.

 

In companies with 50 or more employees the role of the CSE is, in broad terms to ensure that the interests of the workers are taken into account in company decisions relating to the economic and financial management of the company, work organisation, occupational training and production techniques. This is primarily achieved through its information and consultation rights. The CSE also has specific responsibilities in relation to health and safety, and it runs the company’s social facilities like canteens. In addition, as noted in the section on collective bargaining, it can negotiate collective agreements in certain circumstances. Where it takes full responsibility for all company-level negotiations, see below, its name changes to Company Council (Conseil d’entreprise – CE) and it gains new veto rights.  

Looking first at information and consultation, there are some issues, like the company’s finances, where the CSE must be informed and consulted on a regular basis, as well as other issues where the CSE’s information and consultation rights relate to specific company actions, like the introduction of new technologies, or are only triggered by specific events, like redundancies. In addition, the CSE has access to a specially constructed database of information on the company, and to a number of documents relating to employment and working time.

 

There are now three broad areas over which the CSE must be informed and consulted on a regular basis. (The system was simplified in 2015, when 17 separate topics for information and consultation were combined into three key areas.) These are:

  • the strategic direction of the company;
  • the company’s economic and financial situation; and
  • the company’s social policy as well as working conditions and employment.

 

The frequency of this consultation can be decided in a company-level collective agreement, signed either with the majority unions or a majority of the works CSE, if there is no union delegate, although the agreement cannot extend the period beyond three years. However, if there is no agreement consultation on these three issues must take place once every year. The information necessary for this regular consultation is in the company database (see below).

 

Consultation on the strategic direction of the company and its economic and financial situation should take place at company level, but, where there are several workplaces in the company, consultation on social policy, working conditions and employment should take place both at company level and workplace level, if these workplaces are likely to be affected.

 

The CSE is helped in its response to the employer’s proposals as well as more generally in its work through its access to a database of economic and social information about the company (BDES).

 

Issues around the database’s content, architecture, rights of access and support can be settled through a company-level agreement or, in companies with fewer than 300 employees an industry-level agreement. However, if there is no agreement, the law sets out a detailed list of topics which must be included in the database. These cover the company’s:

  • human capital, with details on the number and type of employees, including their qualifications, type of contact, hours, training and working conditions;
  • tangible and intangible investments, including research and development spending and plans to change production methods;
  • record on equality between women and men at work, including actions taken by the company;
  • financing, debts and taxes;
  • pay for employees and managers;
  • social and cultural activities;
  • financial performance, including turnover and profits; and
  • partnerships, disposals, acquisitions and mergers.

 

Much more detail is required for companies with 300 or more employees than for those with between 50 and 299. The database should cover the current year and the two previous years, as well as the prospects for the three years to come. The database must be updated regularly and all employee members of the CSE as well as trade union delegates have access to it, although they are may not reveal confidential information.

 

In addition, as in smaller companies, the CSE in companies with 50 or more employees has access to the register of employees and to documents giving details of actual hours worked.

 

As well as the regular consultation on the three broad areas listed above, the CSE must also be consulted on:

  • measures likely to affect the size or structure of the workforce;
  • changes in the company’s economic or legal structure;
  • working conditions, particularly hours of work and training;
  • the introduction of new technologies and major development modifying health and safety or working conditions; and
  • measures to allow the employment of disabled workers.

 

In addition, there are number of particular circumstances mentioned in the legislation where consultation is required, although there is some overlap with the consultation obligations of the company already listed. These specific circumstances are:

  • the introduction of mechanisms for the monitoring or surveillance of employees;
  • restructuring and reducing the number of employees;
  • collective redundancies for economic reasons;
  • any mergers;
  • any proposals to take over other companies; and
  • where the company may be liquidated or put into administration.

 

The timetable for consultation can be agreed locally, although it must provide

 “sufficient” time, for the CSE to consider the issue and present its view. However, if there is no agreement, apart from areas where the law lays down a specific timetable, the CSE normally has a month from the date on which the employer presents its plans to give an opinion. This can be extended to two or even three months if external experts are involved. It is important to remember that the right of the CSE to respond to the employer’s plans and potentially to present its own alternative proposals does not guarantee that they will be changed. The process of consultation is normally procedurally very precise and formal, and management is obliged to listen to the views of the employee representatives, but it may continue with its plans regardless.

 

As well as being informed and consulted there are other areas where the CSE, in companies with 50 employees or more, should take action. These are:

  • analysing work hazards( for more details on the CSE’s health and safety responsibilities see separate section);
  • contributing to improving women’s access to jobs and resolving the problems mothers may face, as well as making the adjustments necessary to allow disabled employees to work; and
  • supporting actions and initiatives combatting harassment, including sexual harassment, and sexist conduct.

 

The CSE in companies with 50 or more employees also has a right to warn (droit d’alerte) in a number of different circumstances. These are:

  • where the CSE becomes aware of worrying information on the economic situation of the company;
  • where the company is making excessive use of precarious contracts;  
  • where individual rights are being infringed, such as through bullying and harassment; and
  • where there is a serious and imminent danger to employees.

 

In all these cases the employer is either required to provide an explanation at the next meeting of the CSE and/or the CSE can inform the relevant authorities.

 

The CSE also runs 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, where these exist. For this, the CSE has funds, provided by the employer, which in larger companies can be substantial.

 

As noted in the section on collective bargaining, the CSE can also negotiate company-level agreements in certain circumstances, generally when there are no trade union delegates. However, it is possible for the CSE to conduct negotiations when there are trade union delegates in the company, but, for this to happen, the union delegates themselves must agree with the company that the CSE will take over this role.

 

To be valid, a company-level agreement to this effect must be signed by unions with majority support in the workplace, as shown in the most recent elections for employee representatives, and it must be indefinite. This agreement sets out the arrangements for company-level negotiation, as well as the amount of paid time off for CSE members and the arrangements for the payment of travel expenses.  However, in addition the agreement defines a list of topics subject to the veto of the CSE. These are issues where the employer cannot act without the CSE giving its approval in the consultation process, and the must include training.  It is for the agreement to determine which other topics, if any, should also be subject to a similar veto, although the legislation suggests that gender equality could be one of them.

 

Where this happens, the CSE becomes a Company Council (Conseil d’entreprise – CE) and the union delegates, although they continue to exist, lose their right to conduct company-level collective bargaining.

 

It is also possible to set up a company committee (CE) where there are no trade union delegates. However, this can only be done by an industry-level agreement extended by the government to all the employers in the industry concerned.

Election and term of office

 

The trade union delegate (DS) is not elected by the union members at the company (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 the CSE 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 which individual the union has chosen.

 

Employee members of the Social and Economic Committee (CSE) are elected by the whole workforce, and the procedure gives an important role to the unions. It is, however, the employer who is responsible for initiating the process, although the union can step in if the employer fails to act.

 

In the first round of elections, only unions can put forward lists of candidates and, in larger companies, unions belonging to several confederations will present lists of candidates for both the full members and their replacements. The unions which can nominate candidates are those which already have a presence in the company, both the locally representative unions (with at least 10% support in previous company elections) and any unions with a union section in the company. The unions belonging to the five nationally representative union confederations can also put present candidates.

 

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 between the unions. 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.

 

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 division of the workers and the seats in the colleges should be agreed with the unions. All employees in the company aged 16 and above have the right to vote, provided they have at least three months’ service in the company and are not subject to some legal restriction on their civic rights. Agency workers can also vote in the companies in which they are working, although they must have been there for at least a year.

 

Candidates must be slightly older (18) and must have worked in the company for at least a year. Close relatives of the employer (such as spouse, partner, parents, children, brother or sister) cannot stand. Part-time workers, working in more than one company, can only be elected in one of them. Agency workers cannot stand as candidates in the companies in which they are working.

 

The lists of candidates being proposed, both full members and their replacements, should reflect gender balance of the employees represented. This is not just in the company as a whole but in the specific college in which the candidates are standing. Men and women alternate on the lists being proposed to ensure that those at the bottom of the lists, who are less likely to be elected, are not all one sex. If the lists fail to reflect the gender balance, the issue can be taken to a judge, who can require that the lists are changed, before the election, or, after the election, that it is rerun.

 

Figures published in 2018 indicate that 38.3% of candidates for employee representative elections in companies with 50 or more employees were women in the electoral cycle 2009 to 2012 and 39.7% of those elected were women. Both figures are slightly below the proportion of women in the workforce in these companies (42.5%), but they are around seven percentage points higher than in 2000-2001.[7]  They also predate the current legislation on the representation of women (loi Rebsamen 17 August 2015), which only came into force on 1 January 2017.   

 

The term of office of the union delegate ends when the next round of elections are held, although an individual can be reappointed, provided they and their union again have the necessary level of support (10%) in these elections. The term of office of representatives of the trade union sections (RSS) which are not representative in the company also ends with the next round of CSE elections and, if the union they represent continues to have the support of less than 10% of the workforce, the individuals concerned cannot take up the position again until six months before the next CSE elections. If the union crosses the 10% threshold it becomes representative in the company and the former representative of the trade union section becomes a union delegate with full rights.

 

CSE members are normally elected for four years, but collective agreements at either industry or company level can provide for a shorter period – down to two years. As part of the changes introduced in 2017, there is now a limit on the total length of time individuals can hold office. Candidates can only be elected three times – a maximum of 12 years – other than in companies with fewer than 50 employees, or in companies with between 50 and 300, where this has been agreed before the election. However, this limit does not apply to positions held in the bodies that preceded the CSE, so it will only begin to have an impact from 2030 onwards.

 

Protection against dismissal

 

Trade union delegates, representatives of union sections which are not representative and those who have held these positions during the previous 12 months, can only be dismissed following an interview with the employer, consultation with the CSE and with the permission of the local labour inspector. The permission of the labour inspector is also required when employment is terminated on the basis of a mutual agreement (rupture conventionnelle).

 

The same protection also applies to CSE members, although in their 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 some protected individuals are dismissed each year. In the period 2008-10, 17% of all workplaces with 50 employees or more requested that at least one protected employee be dismissed and, on average, these demands were made in respect of 1.7% of all protected employees each year. Of these proposed dismissals, just over three-quarters (76.9%) were authorised by the labour inspector.[8]

 

Trade union delegates and elected employee representatives (CSE members) also have some protection against employer discrimination in relation to pay increases under legislation passed in 2015 ((loi Rebsamen). Where the time off for the duties associated with these roles amounts to 30% or more of their contractual hours 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 12 paid hours per year to prepare for negotiations if the company employs 500 or more and 18 hours per year if it employs 1,000 or more. The number of hours provided for this purpose, as well as the paid hours provided to the union delegate (see below) was increased through legislation passed in 2016 (loi travail 8 August 2016).  

 

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 – 12 hours a month; 151 to 499 employees – 18 hours a month; 500 employees or more – 24 hours a month. In companies with 2,000 or more employees, unions which are representative within the company can designate a central union delegate (DSC). He or she has the right to 24 hours paid hours’ time off a month, irrespective of the size of the plant in which he or she is employed. Trade union delegates, including central union delegates, are also able to use their time off outside the company, for example in industry-level negotiations and meetings. They have a right to meet employees during working time, provided this does not cause significant harm, and to leave the company in the course of their activities.   

 

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.

 

As well as time off, each union section – whether representative within the company or not – has the right:

  • to a noticeboard;
  • to organise meetings – including with an external speaker – on work premises but outside working time;
  • to hand out material within the premises at the start and end of work; and
  • to put material on the company’s intranet.

 

In addition, in workplaces with 250 employees or more (increased from the previous threshold of 200 by the so-called Pacte law passed in April 2019), the employer must provide a single room for all the trade union sections and, from 1,000 employees, each union that is representative within the company has the right to its own room.

 

CSE members also have right to paid time off to carry out their duties, which can be agreed with the employer. However, where there is no agreement each member of the CSE has the right to the number of hours set out in the table. This starts at 10 hours a month in the smallest companies where a CSE must be set up (11 to 49 employees) and rises to 34 hours a month in the largest companies (9,750 and above).

 

Number of employees

Time off hours per CSE member per month

11 to 49

10

50 to 74

18

75 to 99

19

100 to 199

21

200 to 499

22

500 to 1,499

24

1,500 to 3,499

26

3,500 to 3,999

27

4,000 to 4,499

28

5,000 to 6,749

29

6,750 to 7,499

30

7,500 to 7,749

31

7,750 to 9,749

32

9,750 onwards

34

 

In larger companies, the total amount of paid time off for CSE members is broadly equivalent to the combined time off provided to the members of the three former bodies (employee delegates, works council and health and safety committee) which the CSE is replacing. However, in companies with between 50 and 200 there are potentially fewer paid time off hours available than before the Macron Ordonnances in 2017. The 2017 legislation did, however, state that the time spent in meetings of the committee would not be counted against the time off allowance, provided it was less than a set threshold. This threshold was fixed at 30 hours per year in companies with 300 to 1,000 employees and 60 hours a year for those with 1,000 and above.

 

As before, one important aspect of all these time off rights is that they can be combined. For example, in a company with 300 employees, an individual who is both a CSE member and a trade union delegate will get both 22 hours a month as a CSE member and 18 hours a month as a trade union delegate. The hours can also be combined and redistributed between the CSE delegates, allowing some members to have more time off and some less than the allocation set out in the table, although this is subject to the limit that the amount of extra time off provided by other CSE members cannot exceed 50% of the initial allocation. CSE can also average their hours over 12 months, spending more time in some months than in others, as long as the annual total does not exceed their monthly hours multiplied by 12, although again with a 50% limit on the amount that can be transferred between months.

 

As well as time off for its members, the CSE has access other resources, although these vary between larger and smaller companies.

 

In companies with fewer than 50 employees, the CSE has the use of a room to allow it to fulfil its functions, primarily as a place to meet. It can also put up notices on the trade union notice boards and at the entrances to the workplace.

 

In companies with 50 or more employees, the CSE has the use of a room together with the equipment and material necessary for it to function effectively – all provided free by the employer. This room can be used both for internal meetings and to invite external guests.

 

In addition, in companies with 50 or more employees, the employer must also provide the CSE with a budget of 0.2% of the total wage bill for its operations. This goes up to 0.22% in companies with at least 2,000 employees. This budget is in addition to any sums provided by the employer to run social and cultural activities in the company, although not where the employer is already contributing 0.22% of the wage bill.

 

The CSE can use this budget to employ its own staff, if it wishes, although it may have to pay some of the cost of the use of external experts – see below. It can also divert up to 10% of its surplus funds into additional cultural and social activities.

 

Another important right, in companies with 50 or more employees, is the right to use experts, either entirely or largely paid for by the employer.  Financial experts can be brought in to look at each of the following three areas for regular consultation:

  • the strategic direction of the company;
  • the company’s economic and financial situation; and
  • the company’s social policy as well as working conditions and employment.

 

The frequency of the use of experts is agreed at company level, either, in the first instance with the unions, or with the CSE itself.

 

In addition, it is possible for the CSE to call in a financial expert in the following specific situations:

  • when it is being consulted over restructuring;,
  • large scale redundancies for economic reasons (at least 10 in 30 days);
  • takeovers; and
  • when it has used its right to warn on economic issues.

 

The CSE can also ask for the help of an “accredited expert” in relation to:

  • serious risks to health or occupational illness;
  • the introduction of new technology or major changes to health and safety; and
  • the preparation of negotiations on gender equality at work (where there are at least 300 employees).

 

It can also ask a financial expert to produce information helpful to unions preparing negotiations on the effective working of the company, and in developing or safeguarding employment.

 

In most of these cases the cost of the expertise is fully borne by the employer. The main exceptions, where the CSE pays 20% of the cost of this expertise and the employer 80% are the use of an expert for the regular consultation on the strategic direction of the company, plus specific consultations on:

  • the introduction of new technologies or major health and safety changes;
  • restructuring; and
  • the use of the right to warn.

 

The experts have the right to see the documents they need to carry out their work, but they must keep information confidential.

 

These rights are not always taken up, but the fact that the CSE and before that the work councils have these powers has resulted in the growth of national organisations of experts linked to the main trade union confederations.

 

Training resources

 

All employees have the right to up to 12 days a year economic, social and trade union training (CFESS). This is extended to up to 18 days if individuals are being asked to exercise a trade union function. However, there are workforce limits on the total amount of time that can be taken for this training each year, which in companies with up to 500 employees are equivalent to one course of training for every 25 employees. (This rate rises in stages to one course per 200 employees in companies with 5,000 or more employees.)  There are also limits on the proportion that can be taken up by those with trade union responsibilities. This means that in a company with 150 employees only three union delegates a year would have  right to this training.

 

The CFESS training can be taken in blocks of at least two days each and the training must be provided either by a nationally representative union or a body approved by the ministry of labour. Since 1 January 2018, the employee is paid in full by the employer during this training. Previously there was a possibility that the union could be asked to reimburse the cost. The legislation does not state that the cost of this training should be borne by the employer. However in practice, it may form part of the CSE’s own budget or be included in the employer’s overall training plan.

 

Members of the CSE in all companies with 11 or more employees are entitled to health and safety training, aimed at developing their ability to assess risks at work and to take action to reduce them. This training should be provided once the individual has been elected and it should have both theoretical and practical elements which take account of the particular circumstances of the industry concerned. CSE members are paid during the training, which must be provided by accredited body, and the employer also pays the cost of the training subject to certain conditions. The training can be renewed after four years in post.

 

The amount of training to be provided to CSE is not specified in the legislation, which states only that it must be the training “necessary to allow them to carry out their tasks” relating to health and safety. However, there are minimum amounts of training prescribed for members of the health and safety committee (CSSCT), a sub-committee of the CSE which is obligatory in companies with at least 300 employees as well as in smaller companies facing higher than average risks (see above). In companies with at least 300 employees, members of the health and safety committee are entitled to a minimum of five days training and in smaller companies they are entitled to at least three days.

 

In addition all CSE members in companies with at least 50 employees are entitled to five days economics training during their four-year period of office, which can be repeated if they are re-elected. The time can be deducted from the rights to time off for economic, social and trade union training (see above). The training should be provided by a body approved by the government authorities or by centres linked to the unions (among others). The training should take place during working time and is paid as such. The cost of the training course is paid by the CSE, which has its own budget from the employer. In practice the CSE will normally bear the other costs, such as travel and accommodation.

 

Requests for training must be made at least 30 days before the start of the training and the employer must reply within 8 days. The request can be refused if the employer considers, and the CSE agrees, that the employee’s absence would have damaging consequences.

Representation at group level

 

In companies with several plants and 2,000 or more employees, unions which are representative within the company can designate a central union delegate (DSC).

 

In cases where a company has at least 50 employees and has more than one plant, there should be both a CSE at plant level and a central CSE for the company. A company-level agreement, signed by the majority unions or, if there is no union delegate, an agreement with a majority of the CSE determines the divisions between the plant-level and company-level CSE. (If no agreement is possible, the employer can take this decision, but this is open to challenge at the regional offices of the ministry of labour.)

 

Where there are several companies within a single group, a group committee (comité du groupe)  must 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. It must be informed about the activity, financial situation and employment of the entire group and it is provided with the consolidated accounts of the group as well as the forecasts. To help the committee understand the accounts, it can appoint a financial expert to explain them and identify trends and concerns, with the cost being borne by the group.

 

The group committee consists of the head of dominant company in the group, plus two assistants, and representatives of the employees in group companies. The representatives’ seats are allocated to the unions on the basis of their support in the previous elections and the unions choose the individuals from their members who have been elected to the CSEs in the companies within the group.

[1] Les relations professionnelles en 2017 : un panorama contrasté du dialogue social dans les établissements? by Fabrice Romans, Dares, 2018

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

[3] Les relations professionnelles en 2017 : un panorama contrasté du dialogue social dans les établissements? by Fabrice Romans, Dares, 2018

[4] Ibid.

[5] Les représentants du personnel dans l’entreprise: des salariés comme les autres? By Maria Teresa Pignoni, Dares, January 2019

 

[6] Article R2314-1pf the Labour Code

[7] Les femmes dans les instances représentatives du personnel : bientôt la parité ? by Lisa Mourlot et Maria-Teresa Pignoni, Dares 2018

[8] Les licenciements et les ruptures conventionnelles des contrats des salariés protégés, principaux indicateurs, by Fabrice Roman and, Élodie Rosankis, Dares, 2017

L. Fulton (2020) National Industrial Relations, an update. Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.