Staff representative elections: the main rules for setting up your CSE (Social and Economic Committee)

Since 1^st January 2020, the Social and Economic Committee (CSE) has replaced the staff representatives (DP), the works council (CE) and the CHSCT (Health, Safety and Working Conditions Committee).

Companies with at least 11 employees must therefore have a CSE, except where there is a lack of candidates.

Our firm can support you in all stages of setting up staff representative elections and in drafting all the documents necessary for the election of the CSE.

A new merged body mandatory from 11 employees

Setting up a CSE is mandatory in companies with at least 11 employees if this number has been reached for 12 consecutive months (Art. L. 2311-2 of the French Labour Code).

By way of exception, companies with a workforce of between 11 and 20 employees are not required to organise elections if no candidate has stood within 30 days of informing the staff of the organisation of the elections ( Article L. 2314-5 of the French Labour Code).

Many companies may be subject to the obligation to set up a CSE. However, the rules are very specific when it comes to calculating the workforce: not all employees count as 'one'. For example, a fixed-term contract will not necessarily count as one employee over the entire period if it has ended during the period (Art. L.1111-2 of the French Labour Code), or a part-time contract will also have to be taken into account in proportion to the amount of time the employee is present (Court of Cassation, Employment Division, 25 September 2019, no.18-60.206). In addition, external persons integrated into the working community (employees assigned, such as for example maintenance or security personnel) may be taken into account in the calculation of the company's workforce (for example Court of Cassation, Employment Division, 2 December 2020, no.19-60.141).

As such, each type of contract must be properly analysed to ensure the share associated with the employee concerned.

Therefore, the first step is to check the workforce to see whether your company is subject to this requirement.

The periodicity of staff representative elections

By default, staff representative elections must be implemented every four years, starting with informing employees about the organisation of elections (Art. L. 2314-33 and L. 2314-34 French Labour Code).

This obligation is incumbent on the employer.

If they are not organised within this period, the request may come from a trade union or an employee. In this case, the employer must organise elections within one month of the request (Art. L. 2314-8 French Labour Code).

However, this request may only be sent after a period of 6 months following the drawing up of a report stating a lack of candidates. This is a new development resulting from the Macron ordinances of 2017 (Ordinance No.2017-1718 of 20 December 2017, a rule now codified in Article L.2314-8 of the French Labour Code).

The schedule of staff representative elections

When setting up staff representative elections, several stages must be respected:

Employees are informed and the trade unions are invited to negotiate the pre-election memorandum of understanding

As part of the implementation of the elections, the employer must first inform the employees of the organisation of staff representative elections by any means, and state the envisaged date of the first round of the elections (Art. L. 2314-4 French Labour Code).

The employer must also inform the trade unions and invite them to negotiate the pre-election memorandum of understanding (L. 2314-5 French Labour Code.) This letter must reach the unions no later than 15 days before the date of the first meeting to negotiate the pre-election memorandum of understanding.

The trade union organisations that must be invited are the representative trade union organisations and the trade union organisations concerned.

In view of the consequences of the omission of a trade union organisation, particular care must be taken at this stage, which can prove to be tricky in the sense that it is sometimes difficult to find one's way around the organisations to be invited, their addresses and the contact persons to be determined.

Negotiation of the pre-election memorandum of understanding

The negotiation of the pre-election memorandum of understanding (the "PAP") between the employer and the trade union organisation is the main stage of the staff representative elections. It allows the employer and the trade union organisations to negotiate an agreement on the terms of setting up staff representative elections and to settle the practical questions relating to this organisation (date of submission of the lists, opening and closing of the ballot, colour of the ballots, arrangements for voting by post, envelope, etc.).

In practice, the PAP will focus on:

• The distribution of seats among the various categories of staff and the distribution of staff in electoral colleges (Art. L.2314-13 French Labour Code).

The number of employee representatives to be elected varies according to the number of employees in the company, which must be assessed on the date of the first ballot (Court of Cassation, Employment Division, 5 February 2020, no. 19-13.550; Court of Cassation,. Employment Division, 5 February 2020 no.19-13.444).

• The proportion of women and men in each electoral college (Art. L.2314-13 French Labour Code).

• Terms of organising and conducting electoral operations in accordance with the general principles of electoral law (Art. L.2314-28 French Labour Code).

In the absence of a response from the trade union organisations to the invitation letter, the employer will itself set, via a memorandum, the conditions for setting up the employee representative elections.

This document is fundamental and should not be overlooked as it addresses a number of important issues in the organisation of elections. The rules applicable in this area may also be complex to understand since certain points require agreement by a double majority (distribution of staff between the colleges.)

Is it appropriate to negotiate an agreement on the Social and Economic Committee?

Certain clauses cannot be included in the pre-election memorandum of understanding and remain subject to the conclusion of a collective agreement signed under the conditions of "ordinary law".

Thus, for example, the modification of the number of electoral colleges or organisation of the ballot outside working time can only be decided by agreement signed by the majority of trade union organisations (Art. L. 2314-27 French Labour Code). Similarly, the clauses relating to the implementation of electronic voting (Art. L. 2314-26 and R.2314-13 French Labour Code), the reduction of the terms of office  (Art. L. 2314-34 French Labour Code) or the remit of the CSE (Art. L. 2312-19 to L. 2312-21 French Labour Code) can only be present in a collective agreement separate from the pre-election memorandum of understanding. The definition of separate places of business – which generates an abundance of litigation – may also be decided in the context of a separate agreement (Art. L. 2313-2 French Labour Code).

Depending on the desired derogations, it is therefore necessary to check whether it is necessary to conclude a specific collective agreement.

The electoral campaign: beware of the pitfalls

The first round is reserved for the lists submitted by the trade unions (L. 2314-5 and L. 2314-29 French Labour Code). Employees wishing to stand who are not members of a union must wait for the second round to be able to submit their candidacy.

Candidates can use the resources of their union section, i.e. billboard, leaflets, Internet, etc. (Art. L. 2142-6 French Labour Code). Additional resources may be provided for in the pre-election memorandum of understanding, it being specified that evidently all the unions must have access to the same communication resources (Court of Cassation, Employment Division, 27 May 2020, no. 19-15.105).

Lists of candidates

Candidacies are submitted in the form of a separate list for each category of staff (Art. L. 2314-29 French Labour Code). If trade unions have drawn up a joint list, they must indicate, when submitting their list, on what basis the votes obtained by the list in question will then be distributed among them.

For each electoral college, the lists comprising several candidates, elected members and alternate members, must be composed of a number of women and men corresponding to the proportion of women and men registered on the electoral list. The lists are composed alternately of one candidate of each sex until exhaustion of the candidates of one of the sexes. (This rule does not apply to free candidates, (Court of Cassation, Employment Division,25 November 2020, no. 19-60.222) nor when terms of office for only one member and one alternate member are open.

The voting board

The members of the voting board are electors of the electoral college concerned. At least two members of the board must be present throughout the electoral process.

The composition of the voting board is, in principle, specified by a provision of the pre-election memorandum of understanding. If the latter does not mention or is incomplete on this point, only the rules provided for by the electoral code should be applied, that is to say, the two eldest employee electors and the youngest employee elector must be chosen.

How voting takes place

In order to ensure the validity of the vote, the elector must take part in the vote as follows:

• he/she comes to the table on which the ballot papers are placed;
• he/she shall take an envelope and a ballot paper for each electoral list;
• without leaving the voting room, the elector goes into the voting booth;
• he/she then goes to the polling table where the members of the voting board are sitting;
• he/she has his/her identity established;
• he/she inserts the envelope into the urn him/herself;
• He/she goes to the assessor to sign the attendance sheet.

Drafting and sending the report

Each list receives as many seats as the number of votes obtained by it contains, times the electoral quotient, the latter being equal to the total number of valid votes cast for the college divided by the number of seats to be filled.  (Art. L. 2314-29 French Labour Code)

Where no seats have been filled or seats remain to be filled, the remaining seats shall be allocated on the basis of the highest average. (Court of Cassation, Employment Division, 26 May 2010, no. 09-60.350; Court of Cassation, Employment Division, 21 March 2018, no. 17-60.287)

The election report shall be drawn up as soon as the votes have been counted. The results of the elections are announced by the voting board. (Court of Cassation, Employment Division, 27 May 2020, no. 19-13.504)

The employer must send the report within 15 days to the body responsible for collecting the election results: CTEP, TSA 79104, 76934 Rouen Cedex 9 or enter them online (https://www.elections-professionnelles.travail.gouv.fr/web/guest/outil-d-aide-a-la-saisie-demat).

The employer must send a copy to the unions that submitted lists of candidates for the elections concerned and to those that participated in the negotiation of the pre-election memorandum of understanding.

Our team can support you and provide you with advice from years of experience in staff representative elections and the package of documents necessary for compliance with all the stages.

1. A new merged body mandatory from 11 employees
2. The periodicity of staff representative elections
3. The schedule of staff representative elections
4. Employees are informed and the trade unions are invited to negotiate the pre-election memorandum of understanding
5. Negotiation of the pre-election memorandum of understanding
6. Is it appropriate to negotiate an agreement on the Social and Economic Committee?
7. The electoral campaign: beware of the pitfalls
8. Lists of candidates
9. The voting board
10. How voting takes place
11. Drafting and sending the report