Election of Staff Representatives: When a Construction Site is a Separate Establishment

Imagine: you are the head of a cleaning company based in Saint-Julien-en-Genevois. You manage about twenty sites throughout the Auvergne-Rhône-Alpes region. Staff representative elections are approaching. How do you organise the vote? A single electoral college for the whole company, or a separate ballot per site? The question is crucial: it determines who will represent the employees and negotiate with you. A mistake can invalidate everything.

That is exactly what happened in 1978 to a Parisian cleaning company. The Court of Cassation ruled: each site with more than 11 permanent employees, with a site manager, is a "separate establishment" (i.e., an autonomous unit within the company) and must organise its own elections. A lesson that still holds today.

This decision, little known to the general public, is nevertheless a cornerstone of professional electoral law. It directly impacts multi-site employers and their employees. So, how do you apply it in practice? Follow the guide.

The Facts: A Story Like Many Others

We are in Paris, 1977. A cleaning company employs hundreds of employees spread across numerous sites throughout the Paris region. For the staff representative elections, the company decides to create only two establishments – two electoral colleges – grouping all employees. But the CFDT (French Democratic Confederation of Labour), a trade union, challenges this organisation. It demands that each site with more than 11 employees, with a site manager, be considered a separate establishment and organise its own elections.

The district court upholds the single vote. The CFDT appeals to the Court of Cassation. The Court of Cassation examines the facts: the sites are dispersed, each has more than 11 employees, they work together permanently under the authority of a site manager. However, according to the law, claims relating to the performance of work must be submitted at each site. This means that each site constitutes an autonomous work unit. The Court quashes the judgment: the district court did not draw the consequences of its own findings. Elections must be organised site by site.

Twist: the case is referred back to the district court of the 15th arrondissement of Paris to be re-judged in accordance with this decision. The CFDT prevails, and the elections are annulled.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 423-1 of the Labour Code (now Articles L. 2313-1 et seq.) which defines a separate establishment: a geographical and functional unit with a certain degree of management autonomy, where employees work together under a common management. For the Court, a cleaning site that employs more than 11 permanent employees, with a site manager, meets this definition. The judges recall that the notion of a separate establishment is a question of fact: it depends on the concrete circumstances.

They analyse two arguments. The company argued that all sites were managed from the Paris headquarters and that there was only one management. But the Court retorts: each site manager has their own authority over the employees in their team, and claims (working hours, working conditions) are resolved on site. The geographical dispersion reinforces this autonomy. The union, for its part, demonstrated that each site functioned as a small independent unit.

This decision is not a reversal: it confirms previous case law requiring a concrete analysis of the organisation of work. However, it innovates by specifying that the threshold of 11 employees (now 11) is a strong indicator, but not exclusive. What matters is the permanence and cohesion of the team under a hierarchical authority.

A key point: the Court does not define an absolute threshold. It looks at the reality on the ground. Thus, a site with 10 employees could be a separate establishment if it meets the other criteria (autonomy, management, permanence). But in practice, the threshold of 11 employees is often used as a simple presumption.

What This Changes for You — Practically

For multi-site employers: you must identify, before each election, whether your different sites or locations constitute separate establishments. If so, organise separate elections. Otherwise, you risk the annulment of the ballot, as in this case. For example, a cleaning company in Cluses that manages 5 sites of 15 employees each in the Arve valley must provide for 5 separate electoral colleges, with their own representatives.

For employees: you have the right to request the creation of a separate establishment if your site meets the conditions. Contact your union or a lawyer. If the employer refuses, you can apply to the judicial court (formerly the district court) by way of interim proceedings (urgent procedure) before the elections.

For unions: this case law is a tool to obtain local representation. You can demand site-by-site elections if the size and autonomy justify it. Procedural costs? Expect around €1,500 to €3,000 for a standard action, but an interim proceeding can cost less than €1,000. The timeframe? A few weeks if urgency is recognised.

Concrete example: in Saint-Julien-en-Genevois, an industrial cleaning company has 3 sites with 12, 18 and 9 employees. The site with 9 employees is not a separate establishment (unless evidence of autonomy). The other two are. The employer must organise two separate elections, failing which the entire electoral process may be annulled.

Four Tips to Avoid This Type of Dispute

• Audit your sites before the elections: list each site or location, its headcount, its manager, its degree of autonomy (management of schedules, claims). For each site with more than 11 permanent employees, ask yourself: could it operate alone? If yes, plan separate elections.
• Consult the unions in advance: the law requires negotiating the pre-election agreement (PAP) with trade union organisations. Offer them an objective analysis of your establishments. An agreement avoids subsequent challenges. If no agreement, the judge will decide.
• Document the autonomy of each site: keep written evidence of the site managers' powers (job descriptions, delegations). This will be useful in case of a dispute. For example, a site manager in Cluses who alone manages replacements and leave for their team.
• React quickly in case of a challenge: if a union or employee challenges the division, do not let it drag on. Apply to the judicial court by way of interim proceedings before the ballot. A quick decision (often less than a month) will secure the elections and avoid costly annulment (re-doing the entire process can take 3 to 6 months).

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This 1978 decision has been confirmed and refined subsequently. For example, the Court of Cassation ruled (Soc., 12 May 2010, No. 09-60.064) that the criterion of management autonomy is decisive: a site without a hierarchical manager on site is not a separate establishment, even with more than 11 employees. Conversely, a site with 8 employees can be one if the site manager has extensive powers (Soc., 17 March 2015, No. 14-60.299).

The trend is towards an increasingly concrete and flexible assessment. Judges look at the actual organisation of work, not the company's articles of association. For the future, the digitalisation of work (teleworking, nomadic teams) could complicate the notion of a separate establishment. But the principle remains: any autonomous, stable and hierarchical unit can claim its own electoral college.

Summary and Next Steps

Frequently Asked Questions:

1. What is a separate establishment for professional elections? It is a work unit that is geographically and functionally autonomous, with at least 11 permanent employees and a manager on site who handles working conditions.

2. Can I challenge my employer's division? Yes. Any employee or union can apply to the judicial court before the elections to request the creation of separate establishments.

3. What are the deadlines to act? Before the elections: by interim proceedings, the judge rules within a few weeks. After the elections: you have 15 days to challenge their validity before the court.

4. What is the cost of a challenge? Lawyer's fees vary: €1,500 to €3,000 for a standard procedure, less for an interim proceeding.

5. What if the employer refuses to organise separate elections? Apply to the judicial court by way of interim proceedings. If the judge rules in your favour, the employer will have to organise new elections.

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