The emergence of a new single employee representative body in France – transcript

The following is a transcript of an interview with Nataline Fleury, Partner, conducted by Liz Bayliss, Senior Expertise Lawyer.

Hello and welcome to the French episode of our first Ashurst Employment World@Work podcast series. I'm Liz Bayliss. I'm a Senior Expertise Lawyer based in our London office. In this episode we're looking at some upcoming reforms to employment law in France and, in particular, the merging of employee representation into one single representative body. To help us look at these issues, I'm joined by Nataline Fleury, an Employment Partner in our Paris office.

So, Nataline, before we look at the changes, it would probably be a good idea if you could start by explaining how employee representation is organised in France at the moment.

Thank you Liz. Well, at the present time, employee representatives are organised into several distinct bodies, depending on the size of the company concerned.

So, in companies with at least 11 employees, there are Staff Delegates who represent the employees in front of the employer. They raise all individual or collective claims that the employees may have and can make some suggestions about the general organisation of the company.

In companies with at least 50 employees, there has to be a Works Council. Its particular role is to be informed regularly on various subjects regarding the company - its strategic aims, its economic and financial situation, the conditions of work and plans for employment levels. It also has to be consulted on all questions relating to the organisation, management, general operation and financial health of the company. The Health and Safety Committee is in charge of all matters regarding the employees' health, security and working conditions. The trade unions are in charge, in particular, of negotiating annually the level of remuneration and the internal collective agreements. Unless agreed specifically within the company, trade unions will not be merged with the other employee representatives as part of this reform. 

Why current employee representation isn't working

OK. So that's how employee representation is organised now. Tell me, Nataline, why isn't this working anymore?

The fact that there are different employee representative roles causes some problems. This is particularly so when the same topic falls within the remit of several employee representative bodies – this is becoming more frequent given the increasing number of topics about which employee representatives must be consulted.

For the time being, since the remit of each employee representative body is strictly defined, each of them receives separate information. This can mean that employee representatives do not have a good understanding of the company's overall situation.

The multiplicity of employee representative bodies can also impact the management of the company. Given the number of separate information and consultation procedures which apply, their combination can be time-consuming and burdensome. For example, moving the company premises currently requires consultation with the Health and Safety Committee before complying with the requirement to consult the Works Council. And this double consultation applies to numerous other types of matter.

Consultation with several different employee representative bodies makes it necessary to hold multiple meetings. This is not always warranted as the same employees usually hold the same mandates in several distinct employee representative bodies, resulting in employers presenting to them about the same project several times.

Different rules may apply to the management of separate employee representative bodies, since each of them have their own budget, allowance of hours, experts, number of members, etc.

What will change

Well I think that highlights the problems very clearly. So moving on to how the government intends to tackle those problems, perhaps you could say something about what will change under these new regulations.

The project presently provides that, in companies with at least 11 employees, the current Staff Delegates, Works Council and Health and Safety Committee will be merged into one single employee representative body.

This unique employee representative body, called the Social and Economic Council (or SEC for short) will have its own budget. This will be equal to or above the budget currently allocated to the Works Council i.e. 0.20% of the gross payroll in companies with between 50 and 2,000 employees and 0.22% in companies with more than 2,000 employees.

The number of mandates that can be held by each employee as an employee representative will be limited to three - although this restriction won't apply to companies with less than 50 employees.

An internal collective agreement can provide for the creation of separate commissions in charge of reviewing distinct specific matters. The employer can add experts and technicians to these commissions who are employees of the company, provided they do not already belong to the SEC. In the absence of a collective agreement providing otherwise, commissions will be implemented in companies with more than 300 employees, for example with regard to professional training, health and safety issues, etc.

So what will be the role of this single employee representative body?

The SEC will keep all of the current roles that employee representatives currently have. It will have the capacity to take court proceedings and use experts on the matters falling within its remit.

The employee representatives can also choose to go beyond what the law will require. If a collective agreement provides for it, the SEC will then be renamed as the Company Council and will be able to negotiate and enter into internal collective agreements, whereas today this is principally within the remit of the trade unions.

And thinking about employers planning ahead for these changes, when will the new regulations come into force?

These provisions will come into force on the date of publication of the decrees that will implement them - and at the latest on the 1st of January 2018.

Transitional measures will apply to companies that already have employee representatives. In these companies, the SEC will be implemented when the mandate for their current employee representatives expires - and at the latest on the 31st of December 2019. For the duration of their current mandates, and at the latest until the 31st of December 2019, the current provisions of the French labour Code applicable to Staff Delegates, the Works Council and the Health and Safety Committee will continue to apply.

What's yet to be decided

So, Nataline, you've explained to us very clearly what the changes will cover. Are there any areas of potential reform that have been left out of the regulations at this stage?

Yes indeed. One sensitive question is the number of employee representatives who will make up the SEC and the number of hours they can spend exercising their mandate. These will be defined in the decree implementing the regulations. The number of hours will be at least 10 hours per month in companies with less than 50 employees and 16 hours per month in other companies.

The time delays involved in consultations with employee representatives are also likely to be reduced, since this is one of the goals of these new regulations. However, we are still waiting for the decrees that will give us more visibility on this.

The purpose of these regulations is to encourage employers to consult more regularly with employee representatives and rely on their expertise. Today, the multiplicity of employee representative bodies is more of a disincentive to work with them, so employers communicate with them only when this is compulsory by law.

How are employer and employee groups responding to these reforms?

Well, although employee representatives remain cautious about ensuring that the implementation of the reforms will not lead to a decrease in their role, the reaction to this reform at least on the employers' side has been very positive since these measures, designed to make labour laws more modern and efficient, have been sought for a very long time.

Thanks, Nataline. That was a really helpful explanation of the changes coming up which I think will be very much welcomed by employers operating in France. Thank you so much for joining me to talk about this topic.

This podcast is part of our first four-part podcast series for the Ashurst Employment World@ Work September edition. We hope you have time to listen to the other three episodes from our Sydney, London and Singapore colleagues, and we'd also love to hear any feedback you have about the new podcast format. Thank you for listening and we hope you can join one of our podcasts again soon.