Union reps - when can they be appointed in French companies?
Cass. soc., 20 March 2024, n° 23-18.331
Union reps - when can they be appointed in French companies?
Although only 1 in 10 French employees is unionized, unions still play a pivotal role in France: they voice employees' concerns, proposals, and negotiate collective agreements which dictate a significant part of French employment law.
But when do unions enter French companies?
Unions appoint employees as their representatives, unlike the members of the works council (comité social et économique) who are elected by the company's staff and are not necessarily union-backed.
In essence, unions deemed "representative" within the company – i.e. union which, among other conditions, secured at least 10% of the votes during the first round of the works council elections – may appoint union delegates (délégués syndicaux) empowered to engage in collective bargaining.
Conversely, non-representative unions may only appoint a union section representative (représentant de la section syndicale) who generally cannot negotiate collective agreements.
Unions may also appoint representatives at the works council, who are not to be confused with the elected members of the works council.
Things get more complex, as a single individual may wear multiple hats:
In companies with fewer than 50 employees, an elected works council member may be appointed as a union delegate by a representative union, or as a union section representative by a non-representative union;
In companies with 50 to 299 employees, union delegates concurrently serve as union representatives at the works council;
Yet, a single individual cannot sit both as an elected member of the works council and as a union representative at the works council.
The French Supreme Court (20 March 2024, ruling no. 23-18.331) has just issued a ruling on such overlaps in companies with less than 50 employees:
The FO union had appointed its union delegate as a union representative at the works council of an association employing less than 50 individuals;
The first instance court decided that this appointment was valid, as the union delegate was not an elected member of the works council, and therefore only sat there in an advisory capacity, with no voting rights;
The French Supreme Court overruled this reasoning: in companies with a headcount below 50, a union delegate may not sit at the works council as a union rep, regardless of whether he/she is an elected member of the works council.