Contrary to certain statements that are all too often made, the setting up of elections for a CSE¹ (and its presence) should not be seen as a constraint. On the contrary, it is the employer’s failure to organise the setting up of the CSE that will create constraints by exposing the company to risks, potentially costly.
¹Is a staff representative body in French companies. Its role is to defend employees’ economic, social and safety interests.
It is important to remember that it is obligatory for employers to organise CSE elections every 4 years in companies with at least 11 employees for 12 consecutive months.
The first advantage is that it enables the employer who complies with this obligation to avoid a possible offence of obstruction, in the event of an inspection by the labour inspectorate, punishable by one year’s imprisonment and a €7,500 fine (even if, in practice, the inspectorate usually simply gives the company formal notice to organise its elections), as well as a claim by the employee for damages as compensation for the prejudice suffered as a result of the absence of a CSE.
Lastly, if no candidates are put forward, in many cases the employer will be able to justify the absence of obligatory information/consultation of the CSE by producing a procès-verbal de carence². Failure to organise elections to the CSE (and therefore the production of a procès-verbal de carence) will always put the employer at risk when consultation is obligatory.
² Official document drawn up by the employer when it has not been possible to set up a CSE due to a lack of candidates in the elections.
For example, in the case of dismissal for unfitness (whether occupational or non-occupational), failure to consult the CSE on the possibility of finding another job for the employee may result in:
- the dismissal being null and void;
- or, in the case of collective dismissal for economic reasons, being unlawful.
Failure to do so may also make it impossible to impose on the employee the termination of a regular practice and the introduction or amendment of internal regulations, not to mention the impossibility of introducing profit-sharing within the company. Therefore, there are real disadvantages to not organising CSE elections.
Furthermore, the absence of a CSE is a real brake on social dialogue and the life of the company. Today, the elected members of the CSE (whether or not they have a mandate) have become partners with whom the employer must communicate and negotiate an agreement (even one that derogates from the collective agreement) covering all the measures that can be negotiated.
