Labour Court Elections: Validity of a Joint List of a Category-Based and a Cross-Category Union

Imagine a company in Clermont-Ferrand, in the services sector. Two unions, one category-based (reserved for managers) and the other cross-category (open to all), decide to form a joint list for the labour court elections. So far, nothing unusual. But a competitor challenges the validity of this list: according to him, a category-based union cannot ally with a cross-category union, as this would distort representativeness. The question every union organisation asks: is such an alliance legal?

This decision of the Court of Cassation of 5 November 2014 (No. 14-11.634) answers in the affirmative, subject to a precise condition: the joint list must only present candidates in the colleges (professional categories) where each union, according to its articles of association, is entitled to present them. In other words, a managers' union cannot, through a joint list, place candidates in the employees' college. But if each stays within its college, the alliance is valid. This decision clarifies a point of union electoral law that is often a source of litigation.

For unions, employers and voters, this case law has concrete consequences in terms of representativeness and the validity of ballots. It secures the practice of alliances while setting clear limits. Analysis.

The facts: a story that happens every day

In March 2013, during labour court elections in a company in the Clermont-Ferrand region, two unions — one category-based (reserved for managers and supervisory staff) and the other cross-category (open to all employees) — decided to present a joint list. This list included candidates in two colleges: the first college (workers and employees) and the second college (managers and supervisory staff). The category-based union, under its articles, could only present candidates in the second college. The cross-category union could present candidates in both.

Another union, a competitor, challenged the validity of this joint list before the District Court (tribunal d'instance) of Clermont-Ferrand. It argued that the alliance was unlawful because it allowed the category-based union indirectly to present candidates in a college where it was not entitled to present them (the first college), which would distort representativeness and violate the principle of equality.

The District Court dismissed the challenge, upholding the list. The competitor union then appealed to the Court of Cassation. The Court of Cassation had to decide: is a joint list between a category-based union and a cross-category union valid, and under what conditions?

The reasoning of the court — analysed

The Court of Cassation, in its judgment of 5 November 2014, confirmed the validity of the joint list. It relied on Articles L. 1441-1 et seq. of the Labour Code, which govern labour court elections, and on the principle of trade union freedom. The reasoning is as follows: a joint list is in itself lawful, as it merely exercises the right to present candidates, which is recognised for each union. The only limit is that the list must not allow a union to circumvent its own articles by presenting candidates in a college where it is not entitled to present them.

In this case, the joint list only included candidates from the category-based union in the second college (managers), in accordance with its articles. The candidates from the cross-category union appeared in both colleges, which was also in accordance with its articles. The joint list therefore did not violate the rules of representativeness. The judges rejected the argument of inequality: the fact that a category-based union cannot present candidates in all colleges is not inequality, but a consequence of its category-based nature.

What few people know is that the Court of Cassation here shows pragmatism: it favours trade union freedom and tactical alliances, while ensuring that each union respects its statutory scope. This decision is part of a consistent line of case law that admits joint lists, subject to compliance with the articles. In other words, the Court does not penalise the alliance itself, but only the misuse of articles.

What this changes for you — concretely

For trade union organisations, this decision offers legal certainty for electoral alliances. If you are a category-based union (e.g. CFE-CGC) and wish to ally with a cross-category union (e.g. CFDT), you may do so, provided that your joint list only presents candidates in the colleges where each is entitled to present them. For example, if the category-based union can only stand in the managers' college, it must not appear on the list in the employees' college, even through a joint candidacy.

For employers, this case law indicates that you must check the compliance of joint lists with union articles during elections. If a joint list appears irregular, you may challenge it before the District Court within three days of the publication of the lists. A concrete example: in Riom, a logistics company saw a joint list challenged because the category-based union presented a candidate in the workers' college. The court annulled the list, and the employer had to organise a new ballot, with additional costs estimated at €5,000.

For voters (employees), this decision guarantees that joint lists are valid as long as they comply with the articles. You can therefore vote for a joint list without fear that your vote will be annulled due to the list being irregular. If you believe a joint list is fraudulent, you can approach the polling station or the District Court.

Four tips to avoid this type of dispute

• Check the articles of the unions before any alliance. Ensure that each union is entitled to present candidates in the colleges where it appears on the joint list. If in doubt, request a copy of the up-to-date articles.
• Draft a clear joint list declaration. Specify for each college the candidates of each union. This avoids any ambiguity on the allocation.
• Consult a lawyer specialising in union electoral law. Before submitting a joint list, have it validated by a professional. The cost of a consultation (around €150) is negligible compared to the risk of annulment of the ballot.
• Respect the challenge deadlines. If you believe a joint list is irregular, act quickly: the deadline to challenge the list is three days after its publication. After this period, the list is deemed valid.

Further reading: related case law and developments

This decision is part of a consistent line of case law. Previously, in a judgment of 12 March 2008 (No. 07-60.243), the Court of Cassation had validated a joint list between a category-based union and a cross-category union, insisting on compliance with the articles. More recently, in a judgment of 9 December 2020 (No. 19-60.089), the Court specified that the joint list must be brought to the attention of the employer and voters before the ballot, failing which it may be challenged.

The trend is therefore towards liberalisation of alliances, while maintaining strict control over compliance with articles. District courts, such as that of Clermont-Ferrand, apply this case law uniformly. For the future, one can expect unions to use joint lists more to maximise their chances of seats, subject to compliance with the rules. One question remains open: what happens if a union amends its articles after the submission of the joint list? The Court will have to decide.

Checklist before acting

FAQ: what you need to know about joint lists for labour courts

• What is a joint list? A single electoral list presented by several unions. Voters vote for the list, and seats are allocated between the unions according to an agreement.
• Can I challenge a joint list if I am a competing union? Yes, within three days of the publication of the list, before the District Court. You must prove that the list violates the articles of one of the unions.
• What are the risks if a joint list is invalidated? The entire ballot may be annulled, leading to new elections. For the employer, this means additional cost (printing, organisation, etc.) and wasted time.
• Do I have to inform the employer of the joint list? Yes, the joint list must be brought to the attention of the employer and voters before the ballot, by any means (posting, email).

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