Article updated on 7 December 2020

Law no. 2020-1379 of 14 November 2020 authorizing the extension of the state of public health emergency has enabled the French Government to reinstate, by way of ordinances, certain derogation measures implemented during the first lockdown.

During the first phase of the public health emergency, Ordinance no. 2020-389 of 1 April 2020 had authorized the unlimited use of video conferencing, audio conferencing and instant messaging for social and economic council (comité social et économique – CSE – i.e. works council) meetings, even in the absence of an agreement. Decree No. 2020-419 of 10 April 2020 had provided the details necessary for the implementation of these provisions.

Ordinance no. 2020-1441 of 25 November du 25 2020 reiterates this mechanism and authorizes video and audio conferencing, and failing such, instant messaging, for staff representative meetings, subject to simply informing the employer, while creating a right of opposition for elected members, which did not exist before. A decree no. 2020-1513 of 3 December 2020 specifies the methods for implementing these alternative methods of meeting, which is identical to the decree of 10 April 2020 taken within the framework of the first lockdown.

The Ordinance of 25 November 2020 shall apply up to expiry of the current public health emergency, i.e. up to 16 February 2021 included, as the current texts stand.

AUTHORIZATION OF REMOTE MEETINGS DURING PUBLIC HEALTH EMERGENCY

With effect from 27 November 2020, subject to the employer informing the council members, remote meetings are authorized for all social and economic council and central social and economic council (comité social et économique central - CSEC) meetings, as follows:

• by video conference;
• by audio conference;
• by instant messaging, where video or audio conferencing is not available or where provided for by a company agreement.

These terms and conditions for organizing remote meetings are also authorized "for all meetings of other staff representative bodies governed by the provisions of the Labor Code". This most likely refers to the group works council, European works council, European company (societas europaea) works council and CSE commissions such as the Health, Safety and Working Conditions Committee (Commission santé, sécurité et conditions de travail - CSSCT).

TERMS AND CONDITIONS FOR MEETINGS VIA AUDIO CONFERENCING AND INSTANT MESSAGING

Decree no. 2020-1513 of 3 December 2020 provides the conditions in which meetings can be held by audio conferencing and instant messaging, which are identical to those set forth during the first public health emergency period. As regards meetings held in videoconferencing, their conditions are already provided for under French Labor Code (art. D.2315-1 and D.2315-2).

Whether the meeting is held by conference call or instant messaging, the technical system implemented must guarantee the identification of its members, as well as their effective participation by ensuring the instant communication of written messages during the deliberations. It must be possible to suspend the meeting.

For secret ballot voting, the system implemented must meet the conditions provided for in paragraph 3 of article D. 2315-1 relating to videoconferencing, guaranteeing the secrecy of the identity of the voter, the confidentiality of the data transmitted and the security of the addressing of the means of authentication, of the signing, recording and counting of the votes.

Specificities applicable to each type of meeting are also provided for.

Conference call meetings

The president must inform the members of the CSE of the meeting by conference call in accordance with "the rules applicable to convening meetings of the body", i.e. at least three days in advance in the case of CSE meetings (Labor Code., art. L. 2315-30) and eight days in advance in the case of central CSE meetings (Labor Code., art. L. 2316-17).

Prior to beginning the deliberations, it is necessary to verify that all members have access to satisfactory technical means.

Voting must take place simultaneously and the participants must have the same amount of time to vote as from the opening of the voting operations (Labor Code, art. D. 2315-2).
Instant messaging meetings

As with conference call meetings, the employer must inform CSE members of the meeting by instant messaging in accordance with "the rules applicable to convening meetings of the body" (Labor Code, art. L. 2315-30 and L. 2316-17). It must specify the date and time of its beginning and the date and time at which it will be closed at the earliest.

The meeting must take place in four stages:

• verification that all the members have access to the appropriate technical means before launching the deliberations;
• closing the debate by message from the president of the staff representative body, but not before the cut-off time set for the end of the deliberations;
• simultaneous vote of the participants, who are given an equal amount of time to vote with effect from the opening of the voting operation as indicated by the president of the staff representative body;
• announcement of the results by the president of the staff representative body to all the members once the casting of votes has ended.

ELECTED MEMBERS' RIGHT OF OPPOSITION

Ordinance no. 2020-1441 of 25 November 2020 has introduced a major innovation: elected staff representatives now have the possibility to object, by a majority vote and within 24 hours before the start of the meeting, to the use of audio conferencing or instant messaging.

This right of opposition concerns information and consultation procedures carried out within the scope of the implementation of:

• collective redundancy procedures, as set forth in Chapter III of Heading III of Book II of the first section of the French Labor Code;
• collective performance agreements (accords de performance collective – APC), as mentioned in Article L.2254-2 of the French Labor Code;
• agreements on collective common-consent termination (rupture conventionnelle collective – RCC), as mentioned in Article L.1237-19 of the French Labor Code;
• the specific long-term partial activity mechanism (activité partielle de longue durée – APLD), as set forth in Article 53 of Law no. 2020-734 of 17 June 2020.

The report submitted to the French President indicates that "in such cases, the meeting must be held in-person, unless the employer has not yet exhausted its option to hold three annual meetings via videoconference, as authorized under common law".

Moreover, the elected members can object, in the same conditions and within the scope of the information and consultation procedures having the same object, to the use of videoconferencing when the limit of three meetings that can be conducted this way per calendar year has been exceeded.

The Ordinance does not specify the form in which such right of opposition must be carried out.

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