Appointment of a trade union delegate: it is up to the union to demonstrate the “distinct” nature of the establishment in which the representative carries out his or her duties

(Cass., soc., 9 November 2022, n°21-20.525)

Under the terms of Article L 2143-3 of the Labour Code, a trade union delegate may be appointed for a perimeter covering a company or an establishment.

The Court of Cassation also provides that such an employee representative can be appointed in a group of companies that are legally separate but form an economic and social unit.

In practice, and in companies with separate establishments, the representative trade union organisations can appoint establishment trade union delegates.

As the notion of distinct establishment is not precisely defined by the Labour Code, a significant amount of litigation has developed on this subject.

On 9 November, the Court of Cassation recalled that the burden of proof of the distinct nature of an establishment, the scope of appointment of a trade union delegate, lies with the trade union.

**

In this case, 3 entities had come together to create a social and economic unit (UES) called UES KLESIA, by an agreement signed on 22 December 2020.

This agreement also provided for :

• that the scope for setting up the social and economic committee (CSE) corresponded to the UES;
• the number of trade union delegates that can be designated within this perimeter, with the possibility for each representative trade union organisation to designate a total of 4 “entity” trade union delegates, all entities combined, and 6 “territorial trade union delegates”;
• that trade union mandates were maintained until the elections for the new ETUC, due to take place on 21 July 2021 at the latest.

After the recognition of the SEU, a trade union appointed a trade union delegate by letter dated 29 March 2021, on the geographical perimeter of “KLESIA” and within an establishment called by the Court “site of the [Localité 2] “.

It should also be noted that the union had previously appointed the same DS in 2017, on an identical scope.

The three entities forming the UES challenged this new designation before the Rennes Court, arguing that the conclusion of the agreement setting up the UES had resulted in a major reorganisation, whereby the activities and staff of the three entities were both taken over and divided between them, so that the “site of the [Localité 2] ” it was no longer a separate establishment within the meaning of the provisions of the Labour Code.

The Court of First Instance rejected this claim, finding that the companies in the SEU did not demonstrate this development.

In support of his reasoning, the judge also noted that the first appointment, which concerned an identical perimeter, had never been contested by the companies at the time, which would deprive them of the possibility of challenging the quality of the site as a perimeter of appointment, especially in the absence of proof that the reorganisation of the company had had the effect of depriving this site of its quality as a separate establishment.

The Court of Cassation overturned the judgment and recalled that it was up to the trade union in this case to demonstrate that the “site of the [Localité 2] ” still fulfilled the rules allowing it to be considered as a separate establishment.

This position is to be welcomed, because even if the companies in the SEU are initially plaintiffs in the action, it would be absurd to consider that the burden of proof would be on them, since it was the union that made the designation.

It is therefore logical that the person who has defined the perimeter should explain his choice.

It should be noted, however, that the position of the Court of Cassation does not represent a reversal, since such a position has already been adopted in the past (in this sense: Cass., soc., 24 May 2016, n°15-20.168).

However, a reminder is worthwhile, since the issue of the scope of the RO’s activities is often raised in the event of litigation.

Moreover, this judgment is also interesting with regard to another ground of cassation that was raised by the companies.

Indeed, the latter also complained that the judgment did not take into account the fact that the agreement of 22 December 2020 did not provide for the appointment of a “site” trade union delegate within the UES or the company, nor the possibility of appointing such a representative at establishment level.

The Court rejected this argument, on the basis of the provisions of Article L 2143-3 paragraph 4 of the Labour Code, which are of public order with regard to the perimeter of appointment of the DS, so that a collective agreement cannot deprive a trade union of the possibility of appointing a trade union delegate at the level of an establishment within the meaning of Article L 2143-2 of the Labour Code.

This judgment therefore also serves as a reminder that, although the social partners have some room for manoeuvre through the conclusion of collective agreements, these arrangements can only provide for more favourable provisions (e.g. by authorising the appointment of such staff representatives in more restricted areas, or by retaining lower staffing levels), and cannot deprive the trade unions of the possibility of appointing a representative.

Despite the rejection of this argument, the conclusion remains positive for the employer.

However, the case was referred back to a new court (one and a half years later…), which will have to assess whether the union can demonstrate that it is still a separate establishment within the scope of the designation.

If not, the appointment will be annulled… But the DS will have exercised his mandate for almost two years even though he did not meet the conditions for doing so, since despite the challenge, he can continue to officiate.

Is this not where the aberration lies?