COMPOSITION AND ELECTION OF STAFF DELEGATES
LexInter | May 27, 2002 | 0 Comments

COMPOSITION AND ELECTION OF STAFF DELEGATES

LABOR CODE (Legislative Part)
Chapter 3: Composition and elections
Article L423-1
(Law n ° 82-915 of October 28, 1982 art. 18 I, II Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 84-575 of July 9, 1984 art. 64 Official Journal of July 10, 1984) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The number of staff representatives is determined on the basis set by regulation, taking into account the number of employees. He is elected as many substitute delegates as titular. The workforce is calculated under the conditions provided for in Article L. 421-2 of this code.
Article L423-2
(Law n ° 82-915 of October 28, 1982 art. 18 III a Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The delegates are elected on the one hand by the workers and employees, on the other hand, by the engineers, department heads, technicians, supervisors and the like on the lists drawn up by the representative trade unions within each establishment for each category of personnel.

Any union affiliated to a nationally representative organization is considered to be representative in the enterprise for the purposes of this chapter.

Article L423-3
(Law n ° 82-915 of October 28, 1982 art. 18 III b Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 84-575 of July 9, 1984 art. 65 Official Journal of July 10, 1984) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001) (Law n ° 2001-397 of May 9, 2001 art. 15 Official Journal of May 10, 2001)The number and composition of the electoral colleges cannot be modified by an agreement, a collective labor agreement, extended or not, or a pre-electoral agreement, only when the agreement or the agreement is signed by all the representative trade unions existing in the business. The pre-electoral agreement must be sent to the labor inspector.

The distribution of staff in the electoral colleges and the distribution of seats between the different categories are subject to an agreement between the head of the company or his representative and the representative trade unions concerned.
In the event that this agreement cannot be obtained, the labor inspector proceeds with this distribution among the electoral colleges in accordance with the first paragraph or, failing that, in application of article L. 423-2.
On the occasion of the preparation of the pre-electoral memorandum of understanding referred to above, the trade unions concerned examine the ways and means with a view to achieving a balanced representation of women and men on the candidate lists.

Without prejudice to the foregoing provisions, in temporary employment companies, the distribution of staff representative seats may be the subject of an agreement between the company manager and the trade unions concerned with a view to ensuring fair representation. permanent and temporary staff.

In the event that the magistrate, seized before the elections, decides to set up a mechanism to control their regularity, freedom and sincerity of the ballot, the costs incurred by these measures are to be borne by of the employer.

Article L423-4
(Law n ° 82-915 of October 28, 1982 art. 18 IV Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The loss of the status of a separate establishment recognized by court decision entails the termination of the functions of the staff representatives, unless otherwise agreed between the head of the company and the representative trade unions in the company allowing the staff representatives to complete their work. mandate.
Article L423-5
(Law n ° 82-915 of October 28, 1982 art. 19 I Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Arrangements are made by agreement of the employer and the trade unions concerned to facilitate, if necessary, the representation of employees working in successive shifts or under conditions which isolate them from all other employees.
Article L423-6
(Law n ° 82-915 of October 28, 1982 art. 19 II Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)In establishments with no more than twenty-five employees and electing only one full delegate and one substitute delegate, the staff representatives are elected by a single electoral college comprising all the professional categories.
Article L423-7
(Law n ° 82-915 of October 28, 1982 art. 19 III Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Voters are employees of both sexes over the age of sixteen, having worked for at least three months in the company and not having incurred any of the convictions provided for in Articles L. 5 and L. 6 of the electoral code.
Article L423-8
(Law n ° 82-915 of October 28, 1982 art. 19 IV Official Journal of October 29, 1982 AUROUX LAW) Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Are eligible, with the exception of spouses, ascendants, descendants, brothers, sisters and allies to the same degree of the head of the company, the voters aged eighteen years completed, and having worked in the company without interruption for one year at less.

Employees who have been removed from their trade union functions in application of the amended ordinances of July 27, 1944 and of September 26, 1944 cannot be designated.

Employees holding part-time jobs simultaneously in several companies are only eligible in one of the these companies; they choose the one where they apply.

Article L423-9
(Law n ° 82-915 of October 28, 1982 art. 19 V Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)In temporary employment companies, the seniority conditions provided for in Articles L. 423-7 and L. 423-8 are set for temporary employees, at three months for the electorate and six months for the electorate. ‘eligibility. These conditions are assessed by totaling the periods during which these employees were linked to these companies by temporary employment contracts during the twelve months or the eighteen months preceding the election, depending on whether it is an electorate. or eligibility, this period being reduced to six months in the case of setting up a business or opening a business.
Article L423-10
(Law n ° 82-915 of October 29, 1982 art. 20 I and II Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)All temporary workers who meet the conditions defined both by Article L. 423-9 and by the other provisions of the applicable texts and linked to the company by a temporary employment contract when the lists are drawn up are electors or eligible.

However, the following cease to fulfill the electorate and eligibility conditions:
– employees who have informed the temporary work contractor that they no longer intend to benefit from a new contract;
– employees to whom the temporary work contractor has notified his decision not to call on them for new contracts.

Article L423-11
(Law n ° 82-915 of October 28, 1982 art. 20 I Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)There is no incompatibility between the functions of employee representative and those of members of the works council.
Article L423-12
(Law n ° 82-915 of October 29, 1982 art. 20 III Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The labor inspector may, after consulting the representative trade unions, authorize derogations from the seniority conditions for the electorate, in particular in the event that their application would have the effect of reducing the workforce to less than two-thirds of the workforce. number of employees meeting these conditions.

He may also, after consulting the representative trade unions, authorize exemptions from the seniority conditions for eligibility in the event that the application of these provisions would lead to a reduction in the number of eligible candidates which would not allow the normal organization. electoral operations.

Article L423-13
(Law n ° 82-915 of October 28, 1982 art. 21 I Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The election takes place by secret ballot in an envelope. Separate votes are taken for the full members and the substitute members in each of the professional categories forming separate colleges.

The election takes place during working time. However, a contrary agreement can be concluded between the employer and all the representative trade unions existing in the company, in particular in the case of continuous work.

The modalities of organization and conduct of electoral operations are subject to an agreement between the head of the company and the trade unions concerned. This agreement must respect the general principles of electoral law. The terms on which no agreement could be reached can be fixed by a decision of the magistrate ruling in last resort in the form of summary proceedings.

Article L423-14
(Law n ° 82-915 of October 28, 1982 art. 21 II and III Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The ballot is a two-round list with representation proportional to the highest average.

In the first ballot, each list is drawn up by the representative trade unions. If the number of voters is less than half of the registered voters, a second ballot takes place within fifteen days, for which voters can vote for lists other than those presented by trade unions.

When the name of a candidate has been crossed out, the erasures are not taken into account if their number is less than 10%. 100 of the valid votes cast in favor of the list on which this candidate appears; in this case, the candidates are declared elected in the order of presentation.

Article L423-15
(Law n ° 82-915 of October 28, 1982 art. 22 Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 85-10 of January 3, 1985 art. 22 Official Journal of January 4, 1985) (Law n ° 2001- 152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Disputes relating to the electorate and the regularity of electoral operations fall under the jurisdiction of the district court which rules in the last resort. The decision can be referred to the Court of Cassation.

When a dispute makes it essential to have recourse to an investigative measure, the expenses relating to this measure are the responsibility of the State.

Article L423-16
(Law n ° 82-915 of October 28, 1982 art. 23 I Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 89-18 of January 13, 1989 art. 58 Official Journal of January 14, 1989) (Law n ° 93 -1313 of December 20, 1993 art. 25 Official Journal of December 21, 1993) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Staff representatives are elected for two years and eligible for re-election.
Their functions end with death, resignation, termination of the employment contract or loss of the conditions required for eligibility. They retain their mandate in the event of a change of professional category.

In the event of a change in the employer’s legal situation as mentioned in the second paragraph of Article L. 122-12, the mandate of the employee representatives of the company which has been the subject of the change remains when this company retains its legal autonomy.
If this company becomes an establishment within the meaning of this title or if the modification referred to in the previous paragraph relates to one or more separate establishments which retain this character, the mandate of the staff representatives elected in the company or in each establishment concerned shall apply. continues to the end. However, the term of office may be reduced or extended, to take into account the usual date of elections in the host company, by agreement between the new employer and the representative trade unions existing in the absorbed establishment (s). or, failing that, the staff representatives concerned.

Any employee representative may be dismissed during his term of office, on a proposal from the union organization which presented him, approved by secret ballot by the majority of the electoral college to which he belongs.

Article L423-17
(Law n ° 82-915 of October 28, 1982 art. 23 II Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)When a titular delegate ceases his functions for one of the reasons indicated in article L. 423-16, or is temporarily absent for any reason whatsoever, he is replaced by an alternate member belonging to a list presented by the organization. union which presented the list on which the incumbent to be replaced was elected, priority being given to the substitute in the same category.
If there is no substitute elected on a list presented by the trade union organization which presented the incumbent, the replacement is ensured by the candidate presented by the same organization and coming on the list immediately after the last candidate elected either as titular, or as a substitute and, failing this, by the substitute of the same category who obtained the greatest number of votes.

The alternate becomes permanent member until the return of the one he replaces or until the renewal of the institution.

Article L423-18
(Law n ° 82-915 of October 28, 1982 art. 23 III Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 85-10 of January 3, 1985 art. 37, art. 38 Official Journal of January 4, 1985) ( Law n ° 93-1313 of December 20, 1993 art. 26 Official Journal of December 21, 1993) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)In any company or body mentioned in Article L. 421-1, the company manager must inform the staff every two years by posting the organization of the elections with a view to the designation of staff representatives. The displayed document specifies the date envisaged for the first round of these elections which must take place no later than the forty-fifth day following that of the posting.

The trade unions concerned are at the same time invited by the head of the company to negotiate the pre-electoral memorandum of understanding and to draw up the lists of their candidates for the functions of staff representative.
In the case of a renewal of the institution, this invitation must be made one month before the expiration of the mandate of the current delegates. The first round of elections must take place in the fortnight preceding the expiration of this mandate.

In the event that, in the absence of staff representatives, the employer is invited to organize elections following a request from an employee or a trade union organization, he is required to initiate the procedure. above, defined in the month following receipt of said request.
When the institution has not been set up or renewed, a deficiency report is drawn up by the business manager; the latter displays it in the company and sends it within fifteen days to the labor inspector who sends a copy to the trade union organizations of employees in the department concerned.

Case law: MEETINGOF REPRESENTATIVE TRADE UNIONSCONVOCATION_A_LA_NEGOCIATION_PREELECTORALE
Article L423-19
(Law n ° 93-1313 of December 20, 1993 art. 27 Official Journal of December 21, 1993) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)The election of employee representatives and the election of employee representatives to the works council take place on the same date.
These simultaneous elections take place for the first time either on the occasion of the constitution of the works council, or on the date of the renewal of the institution.
The term of office of staff representatives is extended accordingly. It may be reduced in the event that the works council’s mandate expires before that of the staff representatives.

 

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