Covid-19 | Works Council (CSE) consultations in light of the Covid-19 health crisis

Ordinance No. 2020-460 of 22 April 2020 provides for two provisions relating to the Works Council (CSE):

• the introduction of the new option to individualize partial activity when it is implemented by unilateral decision (a favourable opinion from the Works Council is required), and
• a decree aiming at reducing the Works Council’s consultation and expertise time-limits, having a far-reaching application. These time-limits are provided for in Decree No. 2020-508 of 2 May 2020.

New Ordinance No.  2020-507 of 2 May 2020 amended the aforementioned Ordinance of 22 April, thereby excluding collective dismissal plans (plan de sauvegarde de l’emploi – PSE) and collective performance agreements from the measures to reduce consultation and expertise time-limits. It also introduces a reduction of the time-limits for communicating the agenda to the Works Council’s members, and provides for the ability to interrupt ongoing consultations and to initiate a new procedure applying the derogatory consultation time-limits.  

REDUCTION OF THE TIME-LIMITS FOR COMMUNICATING THE AGENDA   

By way of derogation, the time-limits for communicating the agenda for the Works Council’s or Central Works Council’s (CSE central) meetings relating to the employer’s measures aimed at dealing with the economic, financial and social consequences of the spread of the Covid-19 epidemic, shall be reduced.  

Thus, the agenda (i) of the Works Council is communicated by the WC’s president at least 2 days (instead of 3 days) before the meeting; and (ii) that of the Central Works Council is communicated to its members at least 3 days (instead of 8 days) before the meeting.

However, these time-limits shall not apply to information and consultation meetings held in the context of:

• a collective dismissal plan (Articles L. 1233-21 et seq. of the French Labour Code);
• a collective performance agreement (Article L. 2254-2 of the French Labour Code).

These provisions are applicable to time-limits starting to run between 3 May 2020 and 23 August 2020 (Decree No. 2020-509 of 2 May 2020).

These new time-limits replace the statutory and contractual time-limits: therefore, if a different time-limit to communicate the agenda is provided for in a collective bargaining agreement, this reduction also applies.

REDUCTION OF THE TIME-LIMIT REQUIRED FOR THE WORKS COUNCIL CONSULTATION AND EXPERTISE

Scope of the reduction of the consultation and expertise time-limits

Article 9 of the Ordinance of 22 April provides that a decree shall define the time-limits relating to:

• Works Council’s consultation and information relating to the employer’s measures aimed at dealing with the economic, financial and social consequences of the spread of the Covid-19 epidemic;
• the performance of expert assessments carried out at the Works Council’s request, when it has been consulted or informed in such cases.

This therefore derogates from the applicable contractual provisions.

Ordinance of 2 May amending Article 9 of the Ordinance of 22 April, and the Decree of 2 May provide that these provisions are not applicable to the information and consultation procedures carried out as part of the following procedures:

• information and consultation procedures concerning collective dismissal plans;
• information and consultation procedures concerning collective performance agreements;
• recurring information and consultation procedures mentioned in Article L. 2312-17 of the French Labour Code (i.e. relating to the company’s strategy, the company’s economic and financial situation and its employment policy, working and employment conditions).

Apart from these exceptions, the reduction of consultation and expertise procedures’ time-limits does not exclusively apply to measures related to the end of the lockdown. Indeed, as the Ordinance relates to “the employer’s decisions intended to deal with the economic, financial and social consequences of the spread of the epidemic“, it applies to any consultation (and related expert assessment) for instance, or any other consultation relating to the general management of the company or related to the health, safety or working conditions, especially as the employer may choose to interrupt an ongoing consultation to apply the new time-limits.

8, 11 or 12 days instead of 1, 2 or 3 months

The Decree of 2 May has drastically reduced the time-limits for Works Council’s consultation, indeed:

• without an expert’s intervention (most common), the time-limit for Works Council’s consultation is reduced from 1 month to 8 days;
• with an expert’s intervention, this time-limit is reduced from 2 months to 12 days for the Central Works Council and 11 days for establishments’ Works Councils. This time-limit remains 12 days when several expert assessments are carried out at the Central Works Council’s scope and in one or several establishments, when the usual time-limit in these circumstances is of 3 months.

Where the consultation involves one or several Works Council and the Central Works Council, the opinion of each establishment’s Works Councils must be delivered and communicated within one day (instead of 7 days) before the date on which the Central Works Council is deemed to have been consulted.

24 or 48 hours for the time-limits relating to the completion of expert assessments

Time-limits are similarly considerably reduced for the completion of expert assessments:

• the expert has 24 hours, instead of 3 days, to ask the employer for additional information deemed necessary;
• the employer has also 24 hours, instead of 5 days, to reply;
• the time-limit allowed for the expert to notify the employer of the estimated cost, scope and duration of the expert assessment is reduced from 10 days to 48 hours from the time of appointment or 24 hours from the time the employer responds to a request;
• the time-limit given to the employer to seize a judge if it intends to challenge the expert assessment is reduced from 10 days to 48 hours;
• finally, the expert must submit the report 24 hours, and no longer 15 days, before the expiry of the time-limits for the Works Council’s consultation.

“Retroactivity” of the Decree

The Decree’s provisions apply to the consultation time-limits which start running between 3 May 2020 (publication date) and 23 August 2020. Nonetheless, the Ordinance of 2 May provides that when the time-limits that started running before 3 May 2020 have not yet expired, the employer may interrupt the ongoing procedure and initiate, as from the same date, a new consultation procedure benefitting from the reduced time-limits.

FAVOURABLE OPINION OF THE WORKS COUNCIL IN THE EVENT OF A UNILATERAL DECISION TO INTRODUCE INDIVIDUALISED PARTIAL ACTIVITY

Article 8 of the Ordinance of 22 April allows for the individualisation of partial activity or for the application of a non-uniform division of working hours or non-working hours (heures chômées) within the same establishment, department or workshop.

When this scheme results from the employer’s unilateral decision, a “favourable opinion of the Works Council” is required and the document submitted to the Works Council must cover a number of aspects, such as the skills identified or objective criteria applied.

Agreements concluded and unilateral decisions will cease to have effect on 31 December 2020 at the latest.

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Gide’s Employment practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.

This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.

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