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Election of the SEC: employees are not entitled to challenge the employer’s unilateral decision on separate establishments

25 novembre 2021

In multi-establishment companies, the determination of the separate establishments entails the setting up of a Social and Economic Committee (« SEC ») for each of them.

In the absence of a collective agreement, the employer can make a unilateral decision to set the number and the scope of the company’s separate establishments. In doing so, the employer must take into account « the management autonomy of the head of the establishment, in particular with regard to staff management » (art. L. 2313-4 of the French Labour Code).

In the event of a dispute concerning the employer’s unilateral decision, the number and the scope of the separate establishments are set by the Labour Administration (art. R. 2313-1 et seq. of the French Labour Code). Article R. 2313-1 of the French Labour Code specifies that the company’s representative trade unions (and the unions that have constituted a trade union section in the company) may challenge, within a 15-day period, the employer’s unilateral decision before the Labour Administration. The decision of the Labour Administration may then be appealed against (art. L. 2313-5 & R. 2313-2 of the French Labour Code).

In a recent case dated October 20, 2021 (n°20-60.258), the French Supreme Court held that only representative trade unions or trade union sections in the company are legally entitled to challenge the unilateral decision of the employer.

In the case at hand, the perimeter of the company’s separate establishments, which was challenged by several unions, had been confirmed by the Labour Administration, and then by the Civil Court.

After the SECs were elected, the Civil Court cancelled the election of one of these SEC.

Following a company reorganization, the employer invited the representative trade unions to negotiate the loss of the separate establishment status for that ex site. Failing to reach a collective agreement, the employer then decided, by a unilateral decision, to withdraw the status of « separate establishment«  of that site.

No union organization challenged this decision within the required timeframe, but seven employees then brought an action before the Civil Court, asking it to suspend the effects of the employer’s unilateral decision and to allow the organization of new elections.

The dispute was finally brought before the French Supreme Court, which held that « the Civil Court had rightly decided that the employees were not entitled to request the suspension of the effects of the employer’s unilateral decision and the organization of elections on a perimeter no longer recognized as constituting a seperate establishment« .