In a decision dated 26 October 2011, the French Supreme Court unexpectedly held that meetings of Central Works Councils could, under certain circumstances, take place via videoconference.
This case dealt with a ‘virtual meeting’ which was organized unilaterally by the management of L'Oréal Cosmétique, without obtaining the approval of the relevant trade union (la Confédération Française des Travailleurs Chrétiens). The union then challenged the validity of the meeting on this basis.
The first argument put forward by the union was that holding the meeting by videoconference defeated the purpose of meetings of the Central Works Council which were traditionally held somewhere chosen by the employer in order to bring together the employee representatives from a range of different establishments in one place. Although the union acknowledged that developments in technology means that in time habits may have to change, it argued that the use of videoconferencing should have been authorised under the Works Council’s internal rules or that the President of the Council should have at least obtained approval from a majority of its members.
The Supreme Court took a more relaxed approach than the union, noting that “none of the participants expressed any concerns about the use of videoconferencing or said that they were unhappy to hold the meeting via videoconference and none of the matters which were on the agenda of the meeting needed to be decided by a secret ballot”. Accordingly, there was no reason to render the meeting invalid just because it had been held as a videoconference.
There are, however, limits on what will constitute a valid videoconference for these purposes. It must be possible to see all of the participants in the meeting: a conference call where you can’t actually see who you are speaking to will not satisfy this requirement. Additionally, the parties must all consent to the use of videoconferencing, even if this is only by not actively objecting: one opposition would be enough to invalidate the meeting. Furthermore, it would not be appropriate to use videoconferencing if there was going to be a secret ballot. On this point, the Supreme Court’s approach is more restrictive than that of the State Council, which did not object to a secret ballot held in relation to the dismissal of a protected employee taking place during a videoconference.