Trade union representation in a small establishment: when a collective agreement is not enough

Imagine a small establishment in Parentis-en-Born, employing 35 employees. By collective agreement, the company set up a works council (comité d'établissement) whereas the law requires at least 50 employees. All is well, the works council functions. But a trade union decides to appoint a union representative (délégué syndical) in the same establishment. The employer challenges this: is it legal?

This question, which many business owners and employee representatives ask themselves, was decided by the Court of Cassation in a decision of 9 April 2014 (No. 13-16.774). The High Court gave a clear answer: a collective agreement that lowers the employee threshold for the works council does not, without another clause, permit the appointment of a union representative. Explanations.

But what exactly does this change for you? If you are at the head of a small business in Mont-de-Marsan or elsewhere, this decision directly concerns you. It limits the scope of collective agreements and protects employers against unsolicited union appointments in structures that are too small. Let's look together at the facts, the judges' reasoning, and the practical consequences.

The facts: a story like many others

In this case, a company had signed a collective agreement providing for the establishment of a works council in an establishment with fewer than 50 employees. The law generally requires a threshold of 50 employees to create a works council, but a collective agreement may derogate from it. The agreement in question expressly excluded any derogation from the headcount condition for the appointment of union representatives (délégués syndicaux).

A trade union nonetheless appointed a union representative in this establishment. The employer applied to the tribunal d'instance to have the appointment annulled. His argument: the collective agreement did not provide for a derogation for union representatives, so the appointment was illegal.

The tribunal d'instance ruled in favour of the employer and annulled the appointment. The trade union appealed, but the Court of Cassation upheld the judgment. In short, the judges considered that the collective agreement only derogated from the headcount condition for the works council, not for union representatives. Consequently, the appointment was contrary to legal rules.

What few people know is that the law requires a threshold of 50 employees to appoint a union representative in an establishment. If the establishment has fewer than 50 employees, the appointment is only possible if a collective agreement expressly provides for it in a more favourable manner. In our case, the agreement did not contain such a clause.

The court's reasoning — dissected

The Court of Cassation relied on Article L.2143-3 of the Labour Code, which sets out the conditions for appointing a union representative. This text provides that a union representative may be appointed in an establishment with at least 50 employees. However, a collective agreement may provide for different arrangements, provided they are 'more favourable' to employees.

However, be careful: the concept of 'more favourable' is strictly interpreted. An agreement that lowers the headcount threshold for the works council is not automatically considered more favourable for the appointment of union representatives. Each institution has its own rules. The Court of Cassation reminds that the derogation from the 50-employee threshold for the works council does not apply to union representatives, unless there is an express clause.

In other words, the judges distinguished two things: the establishment of the works council (possible by agreement below 50 employees) and the appointment of a union representative (subject to separate rules). The collective agreement must explicitly state that it also derogates from the threshold for union representatives. In this case, the agreement said the opposite: it excluded any derogation for union representatives.

The decision confirms previous case law (Cass. soc., 19 March 2013, No. 12-60.213) which already required a clear clause. So this is not a reversal, but a consistent application. The magistrates considered that the tribunal d'instance had correctly applied the law by annulling the appointment.

What this changes for you — concretely

For business owners: if you have signed a collective agreement allowing the creation of a works council in an establishment with fewer than 50 employees, you are not obliged to accept a union representative within that same scope. Check the terms of your agreement. If it does not contain an express clause authorising the appointment, you can challenge it. In Mont-de-Marsan, a small business with 40 employees could thus refuse the appointment of a union representative if its agreement does not provide for it.

For trade unions: you cannot appoint a union representative in an establishment with fewer than 50 employees without a collective agreement that explicitly allows it. Make sure the agreement contains a 'more favourable' provision to that effect. Otherwise, the appointment will be annulled, as in the case decided.

For employees: this decision limits the number of union representatives in small structures. This may reduce union presence, but also avoid unnecessary tensions. If you are an employee in a small establishment, find out about the agreements in force before requesting a union representative.

undefined, I have encountered cases where employers, thinking they were obliged to accept a union representative, gave in under pressure. This decision gives them a solid argument to oppose it. The time limits for challenging an appointment are 15 days from notification. Legal costs can reach €1,500, but that is little compared to the risks of subsequent litigation.

Four tips to avoid this type of dispute

• Draft precise collective agreements: if you want to allow the appointment of a union representative below 50 employees, state it clearly in the agreement. Do not hope that a derogation for the works council will suffice.
• Consult a lawyer before signing an agreement: before lowering the headcount threshold for the works council, seek advice to anticipate the consequences on representative institutions.
• If an appointment is contestable, act quickly: the 15-day period for challenging runs from notification. Seize the judicial court (formerly tribunal d'instance) without delay.
• Train your HR managers: many are unaware that the rules for the works council and union representatives are separate. Internal training can avoid costly mistakes.

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation protects the legal threshold of 50 employees for union representatives. In a judgment of 19 March 2013 (No. 12-60.213), it had already ruled that a collective agreement could not, by simple reference to the works council, allow the appointment of a union representative. The 2014 decision confirms and clarifies.

Another decision of 10 July 2013 (No. 12-60.349) validated the appointment of a union representative in an establishment with fewer than 50 employees, but because the collective agreement contained an express clause. The difference is therefore crucial: without a clear clause, no derogation.

The trend of the courts is clear: they require explicit wording of agreements. For the future, companies must be vigilant in collective bargaining. Trade unions, for their part, must ensure that their agreements contain the necessary provisions.

Frequently asked questions

1. Can I appoint a union representative in an establishment with 40 employees? No, unless a collective agreement expressly provides for it. An agreement that creates a works council below 50 employees is not enough.
2. What if a trade union appoints a representative without an agreement? You can challenge this appointment before the judicial court within 15 days of its notification.
3. Can a collective agreement set a threshold lower than 50 employees for union representatives? Yes, provided it is more favourable to employees. For example, a threshold of 30 employees may be valid if the agreement clearly states it.
4. What are the risks if I accept a union representative without an agreement? You risk an action for nullity, but also employment tribunal litigation if the representative acts. Better to regularise or challenge.
5. Does this decision apply to large companies? Yes, for each establishment. A large company may have establishments with fewer than 50 employees where the same rules apply.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →