Clarifications from the Cour de cassation on the renunciation of the DS mandate

The union delegate must be chosen first and foremost from among the elected representatives and candidates who obtained at least 10% of the votes in the last elections. They may, however, waive this mandate.
In two rulings handed down on April 19, 2023 (Cass. soc. April 19, 2023, no. 21-60127 and 21- 23348), the Cour de cassation provided interesting clarifications on two issues:
– is a waiver required from a candidate who is not up to date with payment of his or her
union dues?
– does renunciation of a mandate apply to the entire electoral cycle?

RULES FOR APPOINTING A DS

Article L. 2143-3 of the French Labor Code stipulates that a representative trade union in a company or establishment with at least 50 employees, which forms a trade union section, may appoint one or more trade union delegates, with priority given to candidates in professional elections who have received at least 10% of the votes cast in the first round of the most recent CSE elections.

This trade union may, however, appoint a trade union delegate from among the other candidates, or, failing that, from among its members within the company or establishment, or from among its former elected representatives who have reached the time limit for holding office on the CSE :
– if none of the candidates put forward by the trade union organization in the professional elections has received at least 10% of the votes cast in the 1st round of the last CSE elections
– or if there are no remaining candidates in the company or establishment who meet this electoral score requirement.
– or if all the elected representatives who meet this condition have waived their right to be appointed union delegate in writing.

Case 1: Can an employee who is not up to date with his union dues be appointed as a union delegate? (Cass. Soc. April 19, 2023 no. 21-60127)

• The facts

In this 1st case, the CGT trade union had put forward 4 candidates in the last professional elections in 2018, who had won at least 10% of the votes. However, on September 7, 2020, it appointed a member as union delegate, as permitted by the Labor Code, on the grounds that, of the 4 candidates who had obtained the electoral score required by law :
– 2 were no longer salaried employees,
– the 3rd had left his trade union mandate to take up a position on the CSE,
– the 4th had not paid union dues for over two years, the CGT having considered that he had thus renounced his union activity.
The Nîmes Court of First Instance disagreed with the union’s arguments, and annulled the appointment, ruling that the condition set by the union regarding the payment of dues “was not a legal condition to be retained”.

• According to the Cour de cassation, non-payment of union dues may constitute renunciation of the mandate

However, the Cour de cassation overturned this decision and referred the case back to the Montpellier judicial court, on the grounds that :
“By so deciding, whereas a trade union which no longer has any candidates able to exercise a trade union delegate mandate on its behalf may designate one of its members in accordance with the provisions of article L. 2143-3, paragraph 2, of the Labour Code, the court, which did not investigate, as argued, whether Mr. [P] had renounced union activity and had not paid union dues for more than two years, failed to provide a legal basis for its decision. “.

In support of its decision, the Cour de cassation refers to one of its previous rulings of March 26, 2014, in which it ruled that when the eleven candidates on the list for the last elections had not been paying union dues for over a year, or were no longer part of the company’s workforce, the result was that the union no longer had any candidates able to exercise a trade union delegate mandate on its behalf, so that it could validly appoint a member who had not been a candidate in the last elections (Soc. , March 26, 2014, pourvoi n° 13-20.398).

In view of this reasoning, and of its decision of March 26, 2014, which it expressly refers to in its judgment, it is highly likely that the referring Judicial Court will rule in favor of validating the disputed designation.

All the more so since, in his opinion preceding the ruling, the Advocate General indicated that, in his view, once the union can demonstrate that the employee, who was a candidate in the election and obtained 10% of the votes, is no longer a member of the union – which is the case in the absence of payment of dues – the union is not obliged to designate him.

As a result, the Cour de cassation ruled that non-payment of union dues by an employee was tantamount to renunciation of the mandate, and no written document was therefore required. 8

Such a solution – which seems logical in practice – can only be welcomed by practitioners. We will nonetheless await with interest the decision of the Court of Appeal, which we believe should follow the opinion of the Advocate General, in view of the reasoning adopted by the High Court.

Case 2: Is renunciation of the DS mandate definitive for the entire electoral cycle? (Cass. Soc. April 19, 2023 no. 21-23348)

• The facts

In this second case, a candidate Mrs [W], who had obtained more than 10% of the votes in the elections for members of the CSE, was appointed regional union delegate. However, a few months later, on June 8, 2020, she gave up this appointment in writing, and on the following June 9, the union appointed one of its members to replace her.

However, on June 30, 2021, the union reappointed Ms. [W] as regional union delegate for the same establishment, replacing another regional union delegate.

The employer then applied to the Court of First Instance for the appointment to be annulled, on the grounds that the waiver of the right to be appointed trade union delegate was valid for the entire electoral cycle.

The request was rejected by the Court, which considered that, in the absence of any legal clarification to the contrary, an employee’s waiver of his right to be designated as a trade union delegate was valid only on the occasion of a designation, and remained valid as long as the person who made the designation did not withdraw it.

The employer then appealed to the French Supreme Court.

• The French Supreme Court confirms that a candidate’s withdrawal is not final

Whereas the Company argued, in support of its appeal, “that the renunciation of an employee, who presented his candidacy at the last professional elections and obtained at least 10% of the votes cast, to be designated as a trade union delegate is definitive and consequently valid for the entire duration of the electoral cycle remaining until the next elections” and “that the latter cannot therefore go back on his renunciation and subsequently be designated again as a trade union delegate”.the Court did not follow this reasoning.

For the 1st time, the Social Division thus states that ” renunciation by the elected representative or candidate, having received at least 10% of the votes cast in the first round of the most recent social and economic committee elections, the right to be appointed as a union delegate, which allows a representative union to designate a member or former elected representative in application of paragraph 2 of the aforementioned article L. 2143-3, does not have the effect of depriving the union organization of the possibility of subsequently appointing, during the same electoral cycle, the author of the waiver as a union delegate “.

It thus validates the Tribunal’s decision “which noted that Mrs. [W] had gone back on her June 8, 2020 waiver of her right to be appointed as a union delegate by expressing her wish to be appointed in this capacity at the end of a term of office and that she still met the conditions to be appointed”.

According to the French Supreme Court (Cour de cassation), an employee may therefore retract his or her renunciation of a mandate during the same electoral cycle.