Actance Tribune
What's NEW under French Employment Law?
N°1–January 5, 2022
Renewal of French Works Council members
A wide-reaching reform was enacted in 2017 (« the Macron ordinances ») aimed at streamlining employee representation bodies in France. All French companies, between 2018 and 2019, replaced 3 representative bodies into one :
The term of CSE members being, in principle, 4 years, the majority of French companies are expected to renew their CSE in 2022 and 2023.
The issues at stake in these elections are important both for the staff representatives and for company management. The election will determine, on the one hand, the composition of the CSE and, on the other, the respective importance of the representative trade unions with which the management will negotiate collective bargaining agreements.
Professional elections require that a strict process be followed. Numerous companies have begun to think about how to prepare way ahead of time, which implies, in particular, delineating the perimeter of the company’s establishments, making logistical arrangements and drawing up a timetable of the elections, and preparing lists that must respect the gender equality principle.
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The Social and Economic Committee (CSE) is the elected body in charge of representing personnel in France.
It is chaired by the employer and composed of staff representatives elected in principle for 4 years.
Its role is to represent a company’s employees vis-à-vis the employer and to see to it that their interests are factored into the company’s decisions, in particular through the exchanges that take place during information and consultation procedures and meetings with company management.
The duties of the CSE will vary according to the size of the company.
The CSE voices an opinion at the end of the information & consultation process. This opinion can be positive or negative. The CSE’s silence is tantamount to delivering a negative opinion.
The role of OSRs is to defend the collective and individual interests of employees at both a national and company level. OSRs are organizations with which the company can negotiate company or group-wide collective agreements. The capacity of each OSR to field a trade union delegate and the significance of each organization is determined by the results of CSE elections.
Company-wide collective agreements can be signed by one or more OSR that have obtained at least 50% of the votes in the first round of CSE elections. If the agreement is signed by one or more OSR that obtained between 30 and 50% of the votes, the agreement will only be valid if approved by the majority of employees.
Climate Act
On August 22, 2021, the French Parliament passed a law intended to fight climate change and strengthen resilience to its effects, which requires companies to take an active interest in the ecological transition. The law provides for the participation of employee representatives in this process.
This means that HR, in particular, must inform the CSE of the environmental consequences of the company’s activities and of the various measures taken by the employer in this field in matters of organization, management and the general running of the company.
It is therefore advisable in the course of each information and consultation procedure with the CSE, whether at regular interval or on an ad hoc basis, to also address the environmental consequences of the planned project (such as the environmental repercussions of a projected relocation or proposed acquisition).
Warning: the CSE may try to halt an information and consultation procedure, if the information received is deemed to be inadequate. The CSE might also take legal action to obtain a court order requiring the employer to provide the missing information, or even get the court to suspend the planned project. From a criminal point of view, the CSE could also view the lack of information as an interference with its proper working (« délit d’entrave »).
Other measures are provided for by the law, including:
- Communication to the expert that may be appointed by the CSE of information relating to the environmental consequences of the project;
- Integration of environmental factors in the economic and social data base (BDESE).
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Interfering with the proper functioning of a committee is an offence committed by an employer, which prevents staff representatives from defining and carrying out their duties and exercising their right to unionize.
This offence is punishable by:
- one year of imprisonment and a fine of €7,500 for obstructing the establishment and free appointment of staff representatives;
- a €7,500 for obstructing the work of staff representatives;
- one year of imprisonment and a €3,500 fine for violating the protection regime for employee representatives against dismissal..
For second or subsequent offences, the maximum penalty is double such penalties.
The BDESE is a database that gathers a lot of information intended for staff representatives. It is compulsory for all companies and must include information of which a long list is provided for by the labor code. This list has been supplemented in August 2021 by environmental information.
How companies come to grips with the Covid-19 pandemic ?
Since early November, 2021, France has been confronted with the 5th wave of Covid-19 brought about by the Delta variant. The Omicron variant also appeared and the number of Covid-19- positive cases has never been so high.
The French government has, therefore, taken several new measures, including:
- Strengthening protective measures and the wearing of masks both indoors and outdoors;
- Acceleration of the vaccine booster campaign (3rd dose) and vaccine availability for children under 11 years of age;
- The Health Pass should be converted to a Vaccination pass; the health pass (required a negative test of less than 24 hours old or vaccination) allowed until now people to access restaurants and many public venues. A bill currently under review by the French Parliament includes plans to restrict access to vaccinated persons only.
The Company Health And Safety Protocol, as amended on December 30, 2021, provides that from January 3, 2022 onwards, and for 3 weeks, employers are required to mandate a minimum of 3 days for remote work per week on average, calculated on the number of employees concerned, for positions that allow this. When the organization of work and the situation of employees are conducive to doing this, this number can be increased to 4 days per week.
However, employers still cannot require that their employees have a Heatlh Pass (except for those employees that work in certain public venues such as restaurants, cinemas, theaters, large shopping malls, etc.)
To learn more
To help enterprises pursue or resume their activities against the backdrop of the health crisis brought about by the Covid-19 pandemic, the Ministry of Labor has published a national health protocol with the aim of ensuring the maximum health and safety of employees in companies that must come to grips with the Covid-19 epidemic. This protocol translates general principles of prevention into operational measures. It provides a number of recommendations on different topics, including: sanitary and physical distancing measures, ventilation/aeration, and the wearing of masks.
This protocol was published as the health crisis unfolded and is regularly updated depending on the evolution of the health situation and according to the enactment of new governmental measures. It must be taken into account when implementing any new measures, especially on company premises.
It should be noted that the French Council of State ruled that the health and safety protocol is only a set of recommendations and is not enforceable. Nevertheless, in the event of a coronavirus cluster, companies could be faulted for not having complied with the protocol and they should therefore do their utmost to abide by it. In addition, a bill currently under review by the French Parliament may introduce a penalty of €1,000 per employee when the company does not comply with the Health and Safety Protocol.