Trade Union Representative: Can a Union Appoint a Candidate from Another List Without Offering the Post to All Candidates with 10%?

Imagine a France Télécom agency in Montauban. A trade union, say Union A, has just appointed a trade union representative. But here's the thing: this representative was not chosen from among its own candidates who obtained 10% of the votes in the last professional elections. He was recruited from another union list. Another union contests: "You must first offer the post to all candidates who obtained 10%, across all lists!"

This question, which may seem technical, goes to the heart of trade union freedom and representativeness. The lower court had ruled in favour of the challenger, but the Court of Cassation said no. Why? Because the law does not impose such an obligation to "canvass" before the appointment.

This decision, handed down on 27 February 2013 (appeal No. 12-17.221), clarifies the rules for appointing a trade union representative in companies with at least 50 employees. Let's analyse it together, as if we were having a coffee in Moissac.

The facts: a story that happens every day

In this case, the company France Télécom (now Orange) had a secondary establishment in Paris, the "agence distribution Portes de Paris". Several unions were present there. During the professional elections, candidates from different lists had obtained at least 10% of the votes cast in the first round.

Union A (anonymous in the decision, but let's say the Independent Union) appointed a trade union representative: Mr Y... However, Mr Y... was not a candidate on Union A's list, but on that of another union, Union B. He had personally obtained more than 10% of the votes.

Union B applied to the lower court to have this appointment annulled. Its argument: Article L. 2143-3 of the Labour Code requires that the trade union representative be chosen "as a priority from among the candidates who obtained at least 10% of the votes cast in the first round of the last professional elections". According to Union B, this priority means that Union A had first to offer the post to all candidates meeting this criterion, across all lists, before appointing someone. And since it did not do so, the appointment was void.

The lower court followed this argument. It annulled the appointment of Mr Y..., considering that personal representativeness (the 10% score) takes precedence over union membership. Union A then appealed to the Court of Cassation.

The reasoning of the court — broken down

The Court of Cassation quashed the judgment of the lower court. Its reasoning is contained in a few lines, but it is rich in lessons.

The legal basis: Article L. 2143-3 of the Labour Code, in its then-current version, provides: "Each representative trade union organisation in the company or establishment of fifty or more employees which constitutes a trade union section is entitled to appoint a trade union representative. The choice of the trade union representative shall be made as a priority from among the candidates who obtained at least 10% of the votes cast in the first round of the last professional elections."

In simple terms: the law says that a representative union may appoint a trade union representative. And it must, as a priority, choose from among the employees who obtained at least 10% of the votes in the elections. But this "priority" does not mean that it must offer the post to all candidates with 10% before appointing someone else.

The Court explains that the obligation to choose as a priority from among the candidates with 10% "does not have the object or effect of depriving that trade union organisation of the right to have a representative provided that it presented candidates in those elections within the scope of appointment". In other words, as long as the union presented candidates (even if they did not reach 10%), it may appoint a trade union representative, including a person who was not on its list but who obtained 10% on another list.

The Court even specifies that "although it is not excluded that a union may appoint an employee who was a candidate on the list of another union, who obtained at least 10% of the votes and who freely accepts it, Article L. 2143-3 of the Labour Code does not require the trade union organisation to propose, prior to the appointment of a trade union representative under the second paragraph of the aforementioned article, to all candidates who obtained at least 10%, across all union lists, to be appointed trade union representative".

This is a confirmation of the union's freedom of choice, subject to respecting the will of the appointed employee (who must accept). The lower court had imposed an obligation that the law does not provide for.

What this means for you — in practice

This decision has practical implications for unions, employees, and employers.

For unions: you can appoint a trade union representative from outside your own candidates, provided that person has obtained at least 10% of the votes (on any list) and accepts. No need to put out a "tender" to all candidates with 10%. You retain flexibility to find the most competent or motivated person.

For employees: if you have obtained 10% of the votes on a union list, you may be contacted by another union to become a trade union representative. You are free to accept or refuse. Caution: accepting may have consequences (trade union secondment, hours credit, etc.).

For employers: you cannot challenge the appointment of a trade union representative on the ground that he or she was not chosen from among the candidates of the appointing union. The only substantive condition is that the representative obtained 10% of the votes (or, failing that, that there is no candidate with 10% within the scope).

A concrete example: in Moissac, a company with 80 employees. Union A presented a list that obtained 15% of the votes, but none of its candidates individually reached 10%. Union B presented a list with a candidate, Mr Dupont, who obtained 12% of the votes. Union A can appoint Mr Dupont as trade union representative, provided he accepts. It does not have to offer the post to other candidates with 10% (if any).

If you are in this situation, you must: verify that the appointed employee indeed obtained 10% of the votes cast in the first round (not 10% of registered voters). Then, formalise his or her written agreement. Finally, inform the employer by registered letter with acknowledgement of receipt, specifying the scope of appointment (company, establishment).

Four tips to avoid this type of dispute

• Check electoral results accurately: Do not rely on approximations. Ask the employer for the official results of the first round. The 10% threshold is assessed on votes cast (valid ballots), not on registered voters.
• Obtain the appointed employee's written agreement: Before notifying the appointment, have the employee sign a document accepting the mandate. This will avoid any subsequent challenge to his or her consent.
• Respect the scope of appointment: The appointment must be made within the same establishment or company where the employee was a candidate. If you appoint an employee from another establishment, you risk annulment.
• Anticipate challenges: If another union challenges the appointment, gather evidence: election minutes, employee's agreement, appointment letter. The procedure before the lower court is swift (interim proceedings), but good preparation can make a difference.

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Further reading: related case law and developments

This decision is in line with a consistent trend of the Court of Cassation favouring trade union freedom over excessive procedural constraints. One can cite a judgment of 8 July 2009 (No. 08-60.372) which already held that the union is not required to offer the post to all candidates with 10%.

Conversely, the Court has sanctioned "abusive" or "fraudulent" appointments, for example when a union appoints an employee from another list without his or her consent (Cass. soc., 16 May 2012, No. 11-60.207). The balance is therefore as follows: freedom of choice, but respect for the employee's will.

Since 2013, the law has evolved. The Macron Ordinances of 2017 modified the rules on trade union representativeness and the appointment of trade union representatives. Now, the 10% threshold is assessed at the level of the company or establishment, and the trade union representative must be chosen from among the candidates who obtained at least 10% of the votes. But the 2013 solution remains valid: no obligation of prior "canvassing".

In practice: what to do

FAQ: questions you may have

1. Can I appoint an employee who did not obtain 10% of the votes? Yes, if no candidate within the scope reached 10%. In that case, you can freely appoint any employee of the company (even a non-candidate).
2. Must I inform the employer before the appointment? No, the appointment is notified to the employer afterwards. But it is prudent to inform him or her promptly to avoid conflicts.
3. What if the appointed employee refuses? You must appoint another. The refusal must be express and preferably in writing.
4. Can the union appoint an employee who is not a union member? Yes, the law does not require membership of the union. But the employee must accept the mandate.
5. What are the time limits for challenging an appointment? The challenge must be brought before the lower court within 15 days of notification of the appointment (Article R. 2143-6 of the Labour Code). After that, it is inadmissible.

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