The headcount threshold for appointing an site trade union delegate is assessed at the level of the trade union’s categorical field

Cass. Soc., May 21, 2025 n°23-21.640 

In companies with fewer than 2,000 employees and at least two sites, each with at least 50 employees, each representative trade union may appoint one of its site trade union delegates (trade union delegate : DS) to also perform the duties of central company DS (Art. L 2143-5 of the French Labour Code).

A trade union affiliated to the CFE-CGC federation appoints even though it has already appointed an employee from the same site as a central DS.

The court annulled the appointment of the site DS, noting that :

• the site has 278.92 employees belonging to the 2nd and 3rd colleges represented by CFE-CGC,
• As the 2,000-employee threshold had not been crossed, only one DS could therefore be appointed by the category-based union.

In support of their case, the union argued that :

• the number of employees in the category that the union represents according to its statutes is used exclusively to assess the representativity of this category-based union organisation and not the number of DS that they can appoint,
• the number of DS that the category-based union could appoint should therefore be assessed in regards of the overall (and not category-specific) workforce of the company or site.

The Court of Cassation rejected these arguments et ruled that by appointing two DS in the same site – when the number of employees in each category meant that only one DS could be appointed – the union had exceeded the representation possibilities provided for in the Labour Code. The appointment of the site DS is cancelled.

Of course, this rule only applies to category-based unions whose statutes restrict their representation to certain colleges (most often colleges 2 and 3 to the exclusion of college 1).