Useful guidelines on the use of electronic ballot in staff representatives’ elections
16 février 2021
In the current period of health crisis, where labour relations are largely carried out through screens, the use of electronic tools has made it possible to ensure a certain continuity in the collective life of companies. Social and Economic Committee (“SEC”) elections have been organized using electronic ballot, and this is likely to continue even after the health crisis. The French Supreme Court has purposefully provided useful guidelines on the use of electronic ballot in staff representatives’ elections (January 13, 2021, no. 19-23.533).
As a reminder, article L. 2314-26 (paragraph 2) of the French Labour Code provides that: « [The election] may also take place by electronic ballot, […], if a company-wide agreement or, failing that, the employer so decides ».
The French Supreme Court first clarified whether challenging the decision to use electronic voting falls under the procedure applicable to collective agreement litigation or that applicable to electoral litigation.
If these two types of disputes are submitted to the same judges (“Tribunal judiciaire”), the question deserved to be asked because:
- An appeal against a decision relating to collective agreements can be made before the Court of appeal;
- An appeal against a decision relating to electoral litigation can only be made before the French Supreme Court.
The French Supreme Court had already held that the collective agreement deciding on the principle of the use of electronic ballot is an ordinary collective agreement, distinct from the pre-election negotiated protocol (September 28, 2011, no. 10-27.370). 0). It could be argued on such basis that challenging the collective agreement referred to in article L. 2314-26 was subject to the litigation procedure applicable to collective agreements.
The French Supreme Court however considered that the collective agreement referred to in Article L. 2314-26 of the French Labour Code is exclusively related to the organization of staff representatives’ elections. Consequently, the French Supreme Court ruled that the litigation relating to this collective agreement follows the electoral litigation regime.
The French Supreme Court has also clarified the conditions under which failing a collective agreement, the employer could make a unilateral decision (L. 2314-26 of the French Labour Code).
It thus considers that it is only after a fair attempt to negotiate a collective agreement on electronic ballot that the employer may proceed by way of unilateral decision. The unilateral decision is therefore a subsidiary option and not an alternative one.
The French Supreme Court last answered the question whether, in the absence of a union delegate (“délégué syndical”) within the company, it is appropriate to attempt to negotiate according to the derogatory modalities provided for in article L. 2232-24 of the French Labour Code (i.e., negotiating with mandated employees or with the SEC) before going for a unilateral decision.
According to the French Supreme Court, the law provides for a specific type of subsidiary mechanism (i.e. the unilateral decision of the employer) in the case of electronic ballot. The derogatory modalities provided for in article L. 2232-24 o the French Labour Code are therefore not applicable here: in the absence of a possible collective agreement, the employer may unilaterally decide to use electronic ballot without having tried to negotiate with the SEC or mandated employees.