Union Representative on the Works Committee: the Court of Cassation clarifies the rules for companies with multiple establishments

Imagine the situation: you are a union delegate in an establishment in the Saint-Amand-Montrond region, an agri-food factory employing 250 employees. Your company has more than 300 employees in total, spread across several sites in France. You thought you were, by right, the union representative on the works committee of your site. But your employer challenges this appointment. What does the law say? This is exactly what the Court of Cassation had to decide in 1984, in a case that remains authoritative today.

The question that every elected representative or trade unionist asks: "Does my mandate as a union delegate automatically give me a seat on the works committee?" The answer, as often, depends on the workforce thresholds. And the decision of 3 October 1984 (No. 84-60.120) provides an essential clarification, which directly concerns companies with multiple establishments.

In short, the Court of Cassation quashed the judgment of the Tribunal d'instance of Lyon which had ruled in favour of a union. It recalled that the exception provided for companies with fewer than 300 employees does not apply establishment by establishment: it is the total workforce of the company that counts. If the company exceeds 300 employees, each union may freely appoint its representative to the committee, even if the establishment concerned is smaller.

The facts: a story like many that happen every day

The case began in Lyon, in an agri-food company with more than 300 employees, comprising several distinct establishments. One of them, the Lyon establishment, had fewer than 300 employees. A union appointed a union delegate as its representative on the works committee. The employer challenged this appointment before the Tribunal d'instance of Lyon, arguing that the union delegate is not automatically the union representative on the works committee in a company with more than 300 employees.

The Tribunal d'instance, by a judgment of 20 December 1983, dismissed the employer's claim. It held that in companies with more than 300 employees, the union delegate is not automatically the union representative on the works committee, but each representative trade union organisation may freely choose its representative from among eligible employees. In other words, for the court, the appointment of the union delegate as representative on the committee was valid because the union had the right to choose him.

But the employer did not stop there. He appealed to the Court of Cassation. The Court of Cassation, seized of the case, had to interpret the new Article L. 435-1 of the Labour Code (now codified in Article L. 2327-1), which provides for the creation of works committees in companies with several distinct establishments. It also had to reconcile this article with the first paragraph of Article L. 412-17 (now L. 2143-22), which provides that "in companies with fewer than three hundred employees", the union delegate is, by right, the union representative on the works committee or works committee of the establishment. The third paragraph of Article L. 433-1 (now L. 2324-2) provides that in companies with at least 300 employees, each representative union may appoint a union representative to the committee, chosen from among eligible employees.

The reasoning of the court — dissected

The Court of Cassation quashed the judgment of the Tribunal d'instance. Its reasoning is simple but crucial: the expression "in companies with fewer than three hundred employees" in Article L. 412-17 refers not only to single-establishment companies whose overall workforce is less than 300 persons, but also to each establishment with fewer than 300 employees belonging to a company which employs a total number of workers exceeding that threshold.

In short, for the Court, the exception allowing the union delegate to be automatically the union representative on the committee applies only if the company itself has fewer than 300 employees. If the company exceeds this threshold, even if the establishment is smaller, it is not automatic. The union must then freely appoint its representative, under the third paragraph of Article L. 433-1.

What few people know is that this decision was rendered at a time when the texts had just been amended. The Court wanted to avoid an overly broad interpretation of the derogation, which would have allowed unions to circumvent the rule by relying on the size of the establishment rather than that of the company. However, note that this solution does not call into question the principle that a union delegate may be appointed as representative on the committee, but it must be done by a decision of the union, and not automatically.

undefined, I have come across cases where employers tried to challenge the appointment of a union representative on the grounds that the establishment was too small. This decision gives them reason: it is the overall workforce of the company that counts. But for unions, it is sufficient to formalise the appointment by a letter from the union, which is generally done.

What this means for you — concretely

For employers: if your company has more than 300 employees, you can challenge the automatic appointment of a union delegate as representative on the works committee, if that establishment is isolated. You must require an express appointment by the union. In practice, check that the appointment is made in writing, with the name of the employee and their union membership.

For unions: do not assume that your union delegate is automatically the representative on the works committee if the company exceeds 300 employees. Take care to formally appoint a representative, even if it is the same delegate. A simple mention in a meeting minutes may suffice, but an official letter is preferable to avoid any dispute.

For employees: if you are a union delegate in an establishment with fewer than 300 employees of a larger group, you are not automatically a representative on the committee. Your union must appoint you. If this is not done, your employer may refuse to recognise you as such. In Saint-Amand-Montrond, for example, a delegate from a factory of 250 employees in a company of 500 employees in total must be formally appointed.

Concretely, if you are in this situation, you must: check the total workforce of the company (group or company); if it exceeds 300 employees, ask your union for a written appointment; keep that appointment to present to the employer. In case of a challenge, the time limit to act is 15 days from the appointment (Article R. 2324-24 of the Labour Code).

Four tips to avoid this type of dispute

• Check the overall workforce of the company before any automatic appointment. Do not rely solely on the size of the establishment. If the company exceeds 300 employees, the union delegate is not automatically the representative on the works committee.
• Formalise in writing the appointment of the union representative to the committee. Whether for a works committee or an establishment committee, the union must send a letter to the employer, specifying the name of the appointed employee, their capacity and the effective date.
• Anticipate challenges in the event of a change in workforce. If the company crosses the threshold of 300 employees during the year, previous automatic appointments may be called into question. It is better to regularise them immediately.
• Keep workforce records. In case of a dispute, the employer must prove the total workforce. Unions may request communication of the workforce by establishment to verify the threshold.

Further reading: related case law and developments

This 1984 decision is part of a consistent line of the Court of Cassation. It has been confirmed by several subsequent judgments, notably a judgment of the Social Chamber of 12 February 1991 (No. 89-60.784) which held that, in a company with more than 300 employees, the union representative on the works committee must be appointed by the union, even if the establishment has fewer than 300 employees.

More recently, the Court has clarified that this rule also applies to single works committees (Cass. soc., 17 October 2018, No. 17-60.237). The trend is therefore towards maintaining a strict interpretation of the derogation: only the overall workforce of the company gives the right to automatic appointment. For the future, companies that restructure or create new establishments must be vigilant: the threshold of 300 employees is assessed at the highest level, not at the level of each site.

Summary and next steps

FAQ:

• What changes with this decision? It clarifies that in a company with more than 300 employees, even if an establishment has fewer than 300 employees, the union delegate is not automatically the representative on the works committee. The union must appoint them.
• Can I challenge the appointment of a union representative? Yes, if the company exceeds 300 employees and the appointment has not been formalised by the union. You must apply to the judicial court within 15 days of the appointment.
• What are the risks for a union that does not comply with this rule? The appointment may be annulled, depriving the union of representation on the committee until a new regular appointment is made.
• Does this rule apply to single works committees? Yes, the same logic applies: it is the overall workforce of the company that determines the applicable regime.

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Checklist:

1. Determine the total workforce of the company (group, company).
2. If the workforce is ≥ 300, the union delegate is not automatically the representative on the works committee.
3. The union must appoint a representative in writing (who may be the same delegate).
4. Transmit the appointment to the employer no later than the day of the first meeting of the committee.
5. In case of a challenge, act within 15 days.

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