Capacity of the CE [work council] to act (Cass. soc., 19 November 2014, n° 13-23.899)

The CE has no capacity to petition for implementation of a collective agreement, such action being reserved for employees and employee representatives’ trade union organisations.

The CE based its capacity to act on the following arguments:

  • Refusal of the employer to apply the convention was  such as to affect the employees’ working and employment conditions,
  • such refusal was also such as to affect the specific rights that the CE itself held from the collective agreement.

Not so, responded the Cour de cassation, which reiterated that CE’s, unlike trade union organisations, do not have the duty of representing the individual interests of employees, nor collective rights within the profession.

This ruling is in line with the provisions of the Code de Travail [Labour Code], which reserves the right to petition for implementation of a collective agreement to employees (on an individual basis) and to trade unions – collectively or in substitution proceedings.

The ruling is also in accordance with the position adopted by the Court over the last few years (in particular Cass. soc. 18th March 1997 n° 93-43.989, Cass. soc. 2 March 2011, n° 10-13.547).

Capacity to act of the trade union (Cass. soc., 16 December 2014, n° 13-22.308)

A petition is not admissible when brought by a trade union for certain documents to be communicated to the CE where the latter entity, being addressee of the documents, has not requested communication of them, and was not associated with the trade union’s action.

The Code du travail provides that “trade unions may, before all courts, exercise all rights which are reserved to civil plaintiffs regarding acts causing direct or indirect harm to the collective interests of the profession they represent” (C. trav., art. L. 2132-3).

Trade unions' thus have a very broad right to bring action under this text.

Case law accepts, with regard to employee representative bodies [IRP], that in addition to action it may bring for obstruction, a trade union may refer an interim action before the interlocutory court requesting the court to order the employer to hold meetings, inform and consult with the employees’ representative institutions where such are compulsory (Cass. soc., 24 June 2008,    no 07-11.411).

This option is limited, however.

The Cour de cassation has already decided that a trade union may not seek a judicial order for the employer to communicate to the trade union documents that it should have sent to the CE (Cass. soc., 11 Sept. 2012, no 11-22.014).

In its ruling dated 16 December last, the Court also specified that a trade union may not seek communication of documents directly for the benefit of the CE if the latter has not so requested.

It was the view of the Cour de cassation that, since “the documents required from the employer were intended for the CE, which had not requested such communication, and was not associated with the trade union in making the demand", the court of appeal could not rule them to be admissible on the basis that the trade union had both capacity and interest in the CE benefitting from the information intended for it.

A trade union may not therefore substitute itself for the CE.