Covid-19 | Emergency measures taken regarding staff representative bodies

Version updated on 13 May 2020

Article 11 of law no. 2020-290 of 23 March 2020 relative to the emergency measures taken to face the Covid-19 epidemic, authorises the French government to adjust by way of ordinance “the rules for informing and consulting staff representative bodies, in particular the social and economic committee, to enable them to deliver the required opinions within the deadlines and to suspend ongoing electoral processes of works councils (Comité Social et Economique, or “CSE“)”.

It is in this context that Ordinance no. 2020-389 of 1 April 2020 (IRP Ordinance) was published in France’s Official Journal of 2 April 2020, and effective as from 3 April 2020, amended by Ordinance No. 2020-560 of 13 May 2020, that came into force the next day.

SUSPENSION OF ONGOING ELECTORAL PROCESSES

The IRP Ordinance provided for the suspension of ongoing or contemplated electoral processes as from 12 March 2020, until the end of a period ending three months after the end of the state of public health emergency.

The extension of the state of public health emergency until 10 July 2020 provided for by Law No. 2020-546 of 11 May 2020 should have automatically led to the postponement of works council elections. However, in order to ensure that suspended or postponed works council elections are held in time for them to be taken into account under the third cycle of the works council hearing measure, i.e. before 31 December 2020, Ordinance No.2020-560 of 13 May 2020 freezes the deadlines at the applicable dates before the implementation of the law extending the declaration of public health emergency and suspends ongoing electoral processes up until 31 August 2020 inclusive.

If the electoral process has already given rise to the completion of certain formalities between 12 March and 3 April 2020, the suspension will take effect from the date of completion of the latest formality.

The IRP Ordinance provides that this suspension impacts:

• the timeframe for employers to organise elections;
• the timeframe within which disputes relating to the elections must be submitted before the Administration and the judicial judge;
• the timeframe for the Administration to decide on these disputes.

Where a claim has been submitted to the Administration or where the latter has rendered a decision after 12 March 2020, the period within which it has to take a decision and the period within which its decision can be challenged shall start running from the date of the end of the electoral process (i.e. from Monday 31 August 2020).  

EFFECTS OF THE SUSPENSION

The IRP Ordinance specifies that if the suspension occurs between the date of the first round and the date of the second round, the regularity of the first round shall not be called into question.

Furthermore, the obligation to hold by-elections is abolished, whether or not the electoral process has been initiated, where the office of the members of the works council expires less than six months after the date of the end of the suspension of the electoral process.

The IRP Ordinance also recalls that electorate and eligibility conditions shall be assessed on the date of each of the two rounds of voting. Thus, if, due to the suspension or postponement of the professional elections, the second round takes place several months after the first round, the electorate and eligibility conditions will have to be reviewed on that date.

EXTENSION OF STAFF REPRESENTATIVES’ ONGOING OFFICE

In case of suspension or postponement of the electoral process, the IRP Ordinance provides for the extension of elected staff representatives’ office on 12 March 2020 until the announcement of the results of the first or as the case may be, the second round of the professional elections.

The IRP Ordinance confirms that staff representatives remain protected against termination of their employment contract, and the interruption or non-renewal of a temporary work assignment if they are temporary workers.

VIDEOCONFERENCING, CONFERENCE CALLS AND INSTANT MESSAGING

The IRP Ordinance reinforces mechanisms for remote meetings and thus authorises, by way of derogation and after simply informing the CSE members, the use of:

• videoconferencing (without limitation contrary to positive law),
• conference calls,
• or even to an instant messaging system, if the two previous means are not possible or if a company agreement so allows.

These rules shall apply to all meetings of staff representative bodies convened during the state of public health emergency.

Decree No. 2020-419 of 10 April 2020 relative to the procedures for consulting employee representative bodies during the state of public health emergency specifies in particular that when the meeting is held:

• as a conference call, the technical system implemented must guarantee the members’ identification, as well as their effective participation by ensuring the continuous and simultaneous transmission of sound during the deliberations;
   
• through instant messaging, the technical system must guarantee the members’ identification, as well as their effective participation by ensuring the instant communication of the messages written during the deliberations.

In addition, the decree provides that meetings using instant messaging must be held in 4 stages:

1. verification that all members have access to a technical device that meets the conditions mentioned above;
    
2. closure of the deliberations by message from the president, which may not take place before the deadline set for the closure of the deliberations;
    
3. simultaneous voting by the members who shall be entitled to the same duration for voting as from the opening of the voting operations indicated by the president;
    
4. transmission of the results by the president to all the members at the end of the time limit set for voting.

PRIOR INFORMATION OF THE WORKS COUNCIL AND A POSTERIORI CONSULTATION

French Ordinance no. 2020-323 of 25 March 2020 gives the employer the possibility of implementing emergency measures regarding paid vacation, working time and rest days until 31 December 2020.

In this context, the IRP Ordinance provides for prior information of the CSE but, by way of derogation, its consultation may be carried out a posteriori within one month after the employer implements at least one of the following measures:

• imposition of rest days (“RTT” days, rest days set forth under a fixed working time arrangement and rest days corresponding to rights paid into a time saving account) or modification of their dates for rest days already requested;
• derogation on maximum working times or Sunday rest in certain industries.

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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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