French employment code reform: Focus on the social and economic committee

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations. They were supplemented by a number of decrees (some additional regulations should be published soon).

The law ratifying these ordinances is currently being discussed before the Senate. Pending its publication, all provisions of this ambitious reform (the “Reform”) are applicable.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus this article on the main key features of the new employee representative body: the social and economic committee (Comité social et économique – “CSE”).

As a preliminary comment, the general philosophy of employees’ representation was preserved by the Reform, the main interest of which is to rationalize and simplify French employment code provisions on this matter. The purpose of the CSE is to consolidate in a single body the attributions of three different employee representatives bodies in French companies which are (i) the staff representatives (délégués du personnel), who are elected in companies employing at least 11 employees on an habitual basis, (ii) the works council (comité d’entreprise), and (iii) the health and safety committee (comité d’hygiène, de sécurité et des conditions de travail), both elected in companies employing at least 50 employees on an habitual basis.

1. Which companies are concerned by the implementation of the CSE?

The Reform changed the method of calculation of the applicable thresholds to elect employee representatives by tightening the relevant criteria:

• before the Reform: staff representatives were to be elected when a company employed at least 11 employees, during 12 months, whether or not consecutive, over the past 3 years;
• since the Reform: the CSE must be elected in companies the headcount of which reached at least 11 employees during the last 12 consecutive months.
  In multilocation companies, several establishment CSEs need to be elected, together with one central CSE.

2. Who is a member of the CSE?

The members of the CSE are:

• for the employer: the legal representative of the company, who can be assisted by collaborators;
• for the employees: a number of delegates, to be elected by the employees. The number of delegates to be elected depends on the total headcount of the company.

3. What are the CSE’s main attributions?

The CSE’s attributions are a combination of those previously exercised by the staff representatives, works council and health and safety committee:

• in companies employing at least 11 employees: The CSE is principally empowered with the presentation of the employees’ individual and collective complaints to the employer, together with some additional other powers.
• in companies employing at least 50 employees: The role of the CSE is more substantial. In particular:
  • it expresses the employees’ interests;
  •  it must be informed or consulted on a number of areas, in particular the company’s organization, management and general operations. In this respect, it is entitled to access to a number of items of information, to be deposited in a specific database, and it may appoint experts (whose fees are borne either by the CSE, or by the employer, or jointly, depending on the matters in question);
  • it has specific missions regarding health and safety matters;
  • it may accompany the Labor Inspector during his visits;
  • the CSE is also entrusted with social and cultural activities, for the benefit of the employees.

To be able to effectively carry out its powers, in companies employing at least 50 employees, the CSE is entitled to be paid one or two specific contribution(s) by the employer (depending on the circumstances).

4. When the CSE must be elected?

The Government granted companies a certain period of time to adapt to the new rules regarding the CSE. The date of first elections of the CSE will depend on a number of factors. At the latest, companies concerned by this requirement will need to have elected a CSE by 1st January 2020.