Monday, December 14, 2015

France - Measures improving the relationship between employers and employee representative bodies

By Roselyn S. Sands, EY Société d’Avocats, Paris, France

The law on social dialogue and employment, dated August 17, 2015 (the “Rebsamen law”), has brought substantial changes to the manner in which employee representative bodies function in France and has also simplified employer obligations with the Works Council.
In addition, recent legislation has rendered mandatory the creation of an economic and social database containing all information provided to employee representative bodies.
The purpose of these modifications is to improve the relationship between employers and employee representative bodies, in order to guarantee constructive and useful discussions between both parties.

I. Simplified obligations with the Works Council

Instead of 17 mandatory meetings with the Works Council required before on a variety of subjects, the employer now must only meet in the information and consultation process 3 times a year. Moreover, only 3 subjects need be addressed: 1) the strategic orientation of the company, 2) the financial and economic situation of the company and 3) the company’s human resources policies and the working and employment conditions.
In addition, instead of having to collectively bargain 12 different subjects with the unions, they are now regrouped into only 3 negotiations.

II. Merging employee representative bodies

Before the Rebsamen law, companies with under 200 employees could opt to merge the Works Council and the personal delegates (“délégués du personnel”). The Rebsamen law provides greater relief for employers: they may now opt to merge into a single representative body the personal delegates, the Works Council but also the Health and Safety Committee. Employers who employ less than 300 employees can proceed with this merger after having informed and consulted the relevant representative bodies. Employers with more than 300 employers may do so but only if collectively bargained with a representative union.

III. The economic and social database

Since June 2015, all public and private companies with more than 50 employees must create and kep up to date an economic and social database to hold information sent to the employee representatives during the 17 mandatory meetings mentioned above. In essence, the information which must be provided is the same as before, however, it must now be centralized in a single database.
The database must be accessible to all employee representatives at all times; therefore, even if it is not mandatory, almost all companies have implemented an electronic economic and social database. Failure to implement such a database could result in a € 7.500 fine.

a. The purpose of the economic and social database

The main purpose of the economic and social database is to:
- Create a database containing information on the company’s strategic orientations
- Make accessible to employee representatives, at all times, all of the information which it has been provided with in order to ensure useful dialogue between them and the employer
- Organize and centralize information which must be mandatorily provided to the employee representatives in a coherent and organized manner

b. Contents of the economic and social database

The database must contain information on the company’s strategic orientation and its impact on employment, the company’s activity, the evolution of skills, working conditions, the use of subcontracting, interns and temporary workers. This information must not be mere data, but must be presented by the employer in a clear and understandable manner, in order to detail the strategic options which are available as well as their internal consequences for the company.

Therefore, in addition to information which is traditionally provided to the employee representatives, such as the “social data report” (i.e. “Bilan social”), the employer will have to provide, for instance, information on potential growth opportunities or the company’s need for restructuring.

The economic and social database must also include all information which must be provided to employee representatives, such as information on investments, social and cultural activities, the report on health and safety at work.
However, information which must be provided to employee representatives in specific circumstances, such as information notes provided during restructuration.

c. Confidentiality

All employee representatives are bound by an obligation of discretion regarding the information with which they are provided and which is marked as confidential by the employer. Given that the information provided is particularly sensible, employers should take protective measures such as providing each employee representative with his own personal access code or making sure that the sanctions applicable to employees who violate their obligations are mentioned on confidential documents.