2024-04-09 04:00:15
Social right. Since their birth in 1936, the election of staff delegates first, then, after the interlude of the social committees created by the Vichy regime, whose members were designated by the employer, that of the members of the committee of company, created in 1945 in companies with more than fifty employees, have given rise to an innumerable number of court decisions.
Although staff delegates and works councils were merged into a social and economic committee (CSE) by Ordinance No. 2017-1386 of December 22, 2017, known as the “Macron ordinance”, disputes over the designation of union representatives at the CSE, the third component with the employer and the elected representatives of this body, have not stopped. The rules for appointing these union representatives to the CSE – but who do not have a deliberative voice – differ depending on several workforce thresholds.
The situation is simple in companies with at least 300 employees: each representative union organization in the company can appoint a union representative to the CSE, provided that this person is eligible for the CSE. It is the same in establishments with between 50 and 300 employees: the union delegate of each organization is, by right, union representative on the CSE, he combines these mandates.
The situation is more complex below fifty employees, to the extent that there may be overlapping of the function of elected official with that of union delegate. Under the terms of article L. 2143-6 of the labor code, in these establishments, the representative unions may designate, for the duration of his mandate, a member elected to the CSE as union delegate provided that he has collected as personal and in its electoral college at least 10% of the votes cast in the first round of the last elections of the said CSE. This employee will have two functions.
The principle of non-cumulation
On the other hand, by a judgment of September 11, 2019, the social chamber of the Court of Cassation decreed a principle of non-cumulation between the function of elected representative of the CSE (having a deliberative voice) and that of union representative to the CSE (without voice deliberative but carrying the word of the union). It is therefore not possible to designate the union delegate chosen from among the elected representatives of the CSE as a union representative to the same CSE.
This impossibility has just been confirmed even though a national collective agreement – that of establishments and services for disabled and disabled people of March 15, 1966 – opens up to all representative unions, in any company, the possibility of appointing a union delegate whatever regardless of the size of the company or establishment.
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