Succession of companies on a construction site: seniority does not determine everything for professional elections

Imagine: you have been an employee on a construction site in Landivisiau for five years. The company that employs you loses the contract. Another company takes over the site and your colleagues, with the same work, the same hours. But for the staff representative elections, you are told that your seniority resets to zero. Is this legal?

This question, which hundreds of employees ask each year, was answered by the Court of Cassation on 3 December 1987 in a case that took place in Strasbourg. And the answer is not what one might think. Because while the transfer of employment contracts is automatic, electoral rights do not necessarily follow.

In this judgment, the Social Chamber of the Court of Cassation ruled: seniority preserved individually cannot be used to satisfy the conditions of eligibility or union designation in the new company, unless a collective agreement extends the benefit. A decision that has concrete consequences for employees, trade unions and employers, including here, between Morlaix and Brest.

The facts: a story that happens every day

To understand fully, we need to go back to the starting point. In Strasbourg, two companies succeeded each other on the same construction site: company A, then company Novaservices. When Novaservices took over the contract, it also took over the employment contracts of the employees assigned to the site, in accordance with Article L. 122-12 of the Labour Code (now L. 1224-1). Among them was an employee, let us call him Mr X, who had several years of seniority with the first employer.

Some time later, elections for staff representatives were organised in the Strasbourg establishment of Novaservices. Mr X stood as a candidate. But Novaservices contested his candidacy: according to it, he did not have sufficient seniority in the company to be eligible. Article L. 423-8 of the Labour Code (now L. 2314-19) requires one year of seniority in the company to be eligible as a staff representative. However, Mr X had only been with Novaservices for a few months.

Mr X argued that his total seniority should be taken into account, including that acquired with the previous employer, since his contract had been transferred and his seniority preserved. The tribunal d'instance of Strasbourg ruled in his favour by two judgments of 9 July 1986. But Novaservices appealed to the Court of Cassation. The case went up to the Court of Cassation, which quashed the judgments and referred the parties back to the tribunal d'instance of Colmar.

The reasoning of the court — analysed

The Court of Cassation relied on two fundamental texts: Article L. 412-14 of the Labour Code (relating to union delegates) and Article L. 423-8 (for staff representatives). These texts condition eligibility and designation on seniority in "the company". For the Court, the word "company" does not refer to the site or the group, but to the legal entity employer.

In this case, the two companies had no legal connection. The mere fact that they succeeded each other on the same construction site does not create an economic and social unit. The transfer of employment contracts, while maintaining the employee's seniority on an individual basis (for the calculation of remuneration, holidays, etc.), does not transform the new company into a continuation of the old one for collective rights.

The reasoning is as follows: on the one hand, the employee's individual right (his contract) is protected; on the other hand, collective rights (elections, unions) depend on the company where he works at the time of the election. The Court therefore dismissed Mr X's argument, which confused contractual seniority with seniority in the company. It specified that no more favourable collective agreement was applicable at the date of the change, which could have altered the outcome.

This decision is a confirmation of previous case law: judges are strict on the concept of "company". It is neither a reversal nor an evolution, but a reminder of the principles. In practice, this means that an employee who changes employer in the context of a site transfer must start from scratch for representative mandates.

What this changes for you — concretely

For an employee like Mr X, this decision is a blow. If you work on a construction site in Morlaix or elsewhere, and your employer changes, your seniority for elections resets to zero. You cannot be a candidate for staff representative for one year, even if you have ten years of experience behind you. The same applies to being designated as a union delegate: Article L. 2143-13 of the Labour Code requires one year of seniority in the company.

For employers, this is a legal certainty: you can exclude candidates of recently arrived employees, even if they come from the previous operator. But be careful: if you take over employees, you must respect their seniority for all individual rights (salary, bonuses, holidays). A classic trap would be to align everything with seniority in the new company: you risk an employment tribunal dispute.

For trade unions, this decision complicates establishment in companies that succeed each other on a site. An employee who changes employer loses his union mandate and must be re-elected or re-designated. This can create gaps in representation.

Example with figures: a construction site in Landivisiau is taken over by a new company. An employee had 5 years of seniority with the former employer, including 3 as a union delegate. He loses his mandate and cannot be designated in the new company for 1 year. During this period, the employees on the site no longer have a designated union representative.

If you are in this situation, you must check whether your collective agreement contains a more favourable clause. Some agreements provide that seniority acquired with previous employers is taken into account for collective rights. In that case, the clause prevails over the law.

Four tips to avoid this type of dispute

• Check your collective agreement before any election: if it provides a more favourable provision than the Labour Code (for example, taking into account seniority with all employers combined), it applies. Do not assume that the law is the only rule.
• For employers, inform employees from the time of the transfer: when taking over a site, send a letter to each transferred employee specifying which rights are maintained (individual seniority) and which are not (eligibility). This avoids misunderstandings.
• For employees, build a seniority file: keep all your pay slips and employment contracts from previous employers. Even if seniority is not taken into account for elections, it may be for other rights (redundancy payment, seniority bonus).
• For trade unions, anticipate transitions: if a site is taken over, prepare the designation of new union delegates among employees who already have one year in the new company. Avoid premature candidacies that will be challenged.

Further exploration: related case law and developments

This decision is part of a consistent line of the Court of Cassation. As early as 1982 (judgment of 10 November 1982, No. 81-60.360), the Social Chamber had ruled that a transferred employee could not rely on previous seniority to be eligible. More recently, in a judgment of 13 February 2008 (No. 06-60.421), the Court confirmed that the transfer of employment contracts under Article L. 1224-1 does not entail continuity of the company for professional elections.

The trend is therefore very clear: judges are attached to the concept of the company as a distinct legal entity. Only a merger or absorption could create a legal link allowing seniority to be accumulated. For the future, it is unlikely that the case law will evolve, unless the legislature intervenes. In the meantime, transferred employees must count a new one-year period to exercise mandates.

Note that the situation is different for works councils (now social and economic committees): the Court of Cassation has held that, in some merger cases, seniority in absorbed companies could be taken into account (Cass. soc., 21 September 2011, No. 10-60.130). But for construction sites, it is not.

What you absolutely must remember

Here are the answers to the questions you are probably asking:

• Can I be a candidate for staff representative if I have just been transferred to a site? No, not until you have one year of seniority in the new company, unless a more favourable collective agreement applies.
• Does my seniority with the former employer count for anything else? Yes, for all individual rights: remuneration, bonuses, redundancy payment, etc.
• What if my employer refuses to take my seniority into account for elections? Check your collective agreement. If it is silent, the law applies and the employer is right. Otherwise, you can refer the matter to the judicial court.
• Does this rule also apply to union delegates? Yes, exactly the same conditions: one year of seniority in the company.
• Can I combine seniority from several companies if they are part of the same group? No, not automatically. There must be a legal link between them (merger, absorption). Otherwise, each company is independent.

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