In companies with fewer than 300 employees, is the representative of the trade union section automatically trade union representative to the Works Council?

An employee is appointed representative of the trade union section by the CFE-CGC trade union within an economic and social unit (UES). The CFE-CGC trade union and UNSA considered that the employee may, given her duties, take up the position of trade union representative to the Works Council of the UES.

The Magistrates’ Court of Paris annulled this appointment. The employee and the trade union then filed an appeal with the French Supreme Court.  

They argued that the representative of the trade union section benefits from the same prerogatives as the trade union representative with the exception of the power to negotiate collective agreements. Thus, Article L.2143- 22 of the Labour Code provides that in companies with fewer than 300 employees, the trade union representative is by right trade union representative to the Works Council.

The French Supreme Court reversed this reasoning on the grounds that “the appointment of a trade union representative to the works council is a prerogative that the law reserves for trade unions which have obtained an electoral legitimacy, either by being recognised as representatives in companies with fewer than 300 employees, or by having elected members to the works council in other companies”. It follows from this therefore that the representative of the trade union section is not by right trade union representative to the works council or committee (Cass. Soc., 14 December 2011, No. 11-14642).