27 rue du Pont Neuf 75001 Paris
+33(0)1 40 20 91 26

Newsletter February-March 2018

Follow-up of our synopsis of the Macron ordinances reform in labour law, after the study, in January, of the aspects concerning the breach of employment contracts.
The Ordinance n°2017-1386 of September 22nd, 2017 concerning the new organisation of the social and economic dialogue in the company and promoting the exercise and value of the union duties, provides the establishment of a new staff representative body.
Indeed, the whole of the current representative bodies (the work Council, the staff delegates and the health, safety and working conditions Committee) will merge and give rise to the Social and Economic Committee (SEC).
The Union representatives are, of course, not concerned by this reform.

Social partners will henceforth be able to entrust to this new body, that will be then named ‘works Council’, the negotiating and decision-making powers.
Companies have until December 31st, 2019 to set up the SEC so that on January 1st, 2020, the whole of current representative bodies will have completely disappeared.
Please note here that most of the rules applicable to this new body are frequently identical to those regulating the previous representative bodies.

I. The setting up of a SEC

A) The companies concerned

The setting up of the SEC concerns the companies that count at least 11 employees during 12 consecutive months (article L.2311-2 of the French labour Code), which consists of a, de facto, more challenging threshold to reach. Previously, the overrun of the threshold had to intervene for a total period of 12 months, irrespective of whether they were consecutive or not, throughout the three previous years.
Nonetheless, and despite this unification, the SEC does not have the same functions according to whether the company has more or less than 50 employees. Schematically, if the company counts less than 50 employees, the SEC has similar powers to those of the staff representatives (here we are talking of reduced attribution). When the headcount exceeds 50 employees, the SEC has broadly the same prerogatives attached to the work Council (we are talking here of extended attribution).
Once the threshold has been exceeded, the company has 12 months to set up the SEC, during which the representative bodies in place practice the extended punctual attributions, unless there is only one year of mandate left until the expiration of this period of time.

B) The organization of elections

It is the employer who takes the initiative to organise the elections and, if he has omitted to do so, he can be invited by an employee or a union to organise them. He then has to proceed to the elections, in the month following the request, which can only intervene following a 6-month period after the setting up of a report of deficiency (article L.2314-8 of the French labour Code).
The elections have to take place in a maximum period of 90 days following the publication of the document informing of the organisation of the elections (article L. 2314-4 of the French labour Code) and, where appropriate, within 15 days preceding the completion of the previous mandate (article L. 2314-5 of the French labour Code).

II. The SEC’s composition

The SEC comprises of the employer, who presides it, and a staff delegation that includes an equal number of permanent and alternate members.
The number of staff delegation members is set in article R. 2314-1 of the French labour Code. The employer and the trade unions interested can increase this number by agreement.
It also seems that, even though the legal minimum of members constituting the SEC decreases, they have, individually, more delegation hours.
In companies with less than 300 employees (and in the establishment belonging to these companies), the union delegate is a union representative of the SEC provided that he is not a representative of a union section. For the companies of more than 300 employees, each representative trade union of the company or its establishment can designate a union representative to the SEC, following a notification to the employer.

III. The SEC’s representatives’ mandate

The Ordinance also came to limit the renewal of the mandates of the whole of SEC members. They therefore will not be able to perform more than 3 successive mandates, unless provided otherwise in a provision of the pre-election agreement or if the companies count less than 50 employees (article L. 2314-33 of the French labour Code).
Moreover, it is henceforth permitted to resort to the deferral and the pooling of delegation hours. It is therefore possible to use the credit of hours cumulatively in the limit of 12 months. The representative is required to inform the employer at least 8 days before the date provided for its use, without being able to exceed one and a half times the monthly credit of hours (article R. 2315-5 of the French labour Code). The same conditions apply to the distribution of hours between SEC members (article R. 2315-6 of the French labour Code).

IV. The implementation of the first SEC

The SEC can be put in place on different levels: company, establishment, economic and social unit or inter-company.
The Ordinance provided 4 types of transitory measures offered to the company’s discretion for the implementation of SEC at the latest on January 1st, 2020.
1. Once a pre-election agreement has been reached before September 23rd, 2017 for the previous staff representative bodies, the elections had to take place in accordance with the provisions in effect to this date. The SEC will then have to be set up at the latest on January 1st, 2020.
2. Once the mandates of the representative bodies came to an end between September 23rd and December 31st 2017 – and that the pre-election agreement had not been reached by September 23rd 2017 – the mandates were automatically extended to December 31st, 2017, with the possibility of a new extension of a maximum of one year, by collective agreement or decision of the employer following consultation of the bodies, for the setting up of the SEC at the latest on January 1st 2019.
3. Once the expiry of the mandates is expected between January 1st and December 31st, 2018, and that a pre-election agreement had not been reached by September 23rd, 2017, their duration can be reduced or extended to a maximum of a year, in the same conditions provided previously, in order to set up the SEC at the latest on January 1st, 2020.

4. Finally, for the expiries expected throughout 2019, the SEC will have to be set up at their expiry date.
In the case where the end of the mandates of the different representative bodies subject to the previous regime, does not coincide, it is possible to extend or reduce their duration, by collective agreement or by decision of the employer following consultation of the bodies, so that the expiry of all mandates be adjusted to the date of the SEC setting up.
Once the SEC is set up, its running differs to the extent that the company counts more or less than 50 employees. However, some common provisions are also provided.