Court of Cassation, Social Division, September 20, 2023, n°22-60.114
On 6 April 2021, the “Union des syndicats anti-précarité “(USAP) is asking REPOTEL to organise elections for members of the CSE. This was the first time the body had been set up. The employer invited the trade unions to negotiate a pre-electoral protocol agreement. Two trade unions that were not representative in the company took part in the negotiations: USAP and UNSA.
The PAP negotiations fail and the company organises the elections unilaterally. USAP and UNSA did not put forward any candidates. However, two candidates from the CFDT list were elected.
USAP then brought the matter before the Melun Court of First Instance, seeking the annulment of the elections and an order for the negotiation of a pre-electoral agreement, on the grounds that the employer could not unilaterally define the distribution of seats and staff in the colleges.
The Melun Administrative Court rejected the union’s request on the grounds that the employer’s unilateral allocation of staff and seats between colleges complied with legal provisions. Consequently, according to the court, the mere fact that the employer had not referred the matter to the DREETS was not such as to influence the outcome of the elections.
The union appealed to the French Supreme Court.
Before the French Supreme Court, he argued that once at least one trade union organization (whether representative or not) had responded to the employer’s initiative to initiate negotiations on a PAP, but no agreement had been reached, only the Administration could allocate staff and seats between the different electoral colleges. The employer should therefore have referred the matter to the DREETS instead of proceeding unilaterally with this allocation.
The Court of Cassation therefore had to determine whether, in the absence of a PAP, the employer is obliged to refer the matter to the Administration in order to allocate staff and seats between colleges, when only unions that are not representative in the company have taken part in the PAP negotiations.
In the case of the first CSE elections, neither of the two trade unions involved in the negotiations was representative in the company.
In other words, French Supreme court had to rule on the relationship between articles L2314-14 and L2314-13 paragraph 3 of the French Labor Code, the terms of which may, at first glance, appear contradictory.
The former stipulates that the employer shall unilaterally allocate staff and seats between the various electoral colleges “when no representative trade union organization in the company has taken part in the negotiations”.
The second stipulates that the matter is referred to the Administration for apportionment “when at least one trade union organization has responded to the invitation to negotiate and no agreement has been reached”.
In view of the combined wording of these texts, the question arose as to whether the employer was obliged to refer the matter to the DREETS when only one or more non representative trade union organizations took part in the PAP negotiations – to the exclusion of all representative trade union organizations.
Can the employer proceed with a unilateral allocation of staff and seats, if no representative trade union organization took part in the PAP negotiations?
Or must the matter be referred to the DREETS if at least one trade union organization (even if not representative) has responded to the invitation to negotiate?
The Cour of cassation ruled in favor of this second solution.
It sets out the rule laid down in article L2314-6, according to which the distribution of seats between the different categories of personnel and the distribution of personnel in colleges is the subject of an agreement between the employer and the trade union organizations.
It then recalls that, according to paragraph 3 of article L2314-13: “when at least one trade union organization has responded to the employer’s invitation to negotiate, and the agreement mentioned in the first paragraph of this article cannot be obtained, the administrative authority proceeds with this distribution between the electoral colleges.”
The Cour of cassation deduced that once a trade union organization (even one that is not representative in the company) has declared its intention to take part in the pre-electoral negotiations, the employer, in the absence of a pre-electoral agreement concluded in accordance with the legally required conditions, is obliged to refer the matter to the administrative authority to proceed with the distribution of seats and voters within the electoral colleges.
According to the Cour of cassation, the employer’s choice of allocation of seats is irrelevant: since the matter was not referred to the Administration even though at least one trade union had taken part in the PAP negotiations, the elections must be annulled for this reason alone.
Thus, in the absence of a PAP, the distribution of seats and staff between colleges can only be decided unilaterally by the employer if no trade union has responded to the invitation to enter into protocol negotiations.
On the contrary, as soon as a trade union, even if not representative in the company, has expressed its intention to take part in the negotiations, the matter must be referred to the Administration.