Trade Union Delegates
LexInter | September 9, 2011 | 0 Comments

Trade Union Delegates

Article L412-11
(Law n ° 82-915 of October 28, 1982 art. 10 Official Journal of October 29, 1982 CORRECTIVE MARCH 6, 1983) (Law n ° 85-10 of January 3, 1985 art. 36 Official Journal of January 4, 1985) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)Each representative union which constitutes a union section in the companies and organizations referred to in article L. 421-1 which employ at least fifty employees designates, within the limits set in article L. 412-13, one or more union representatives. to represent him to the business manager.
The appointment of a union representative may take place when the workforce of at least fifty employees has been reached for twelve months, consecutive or not, during the three preceding years.

In companies with at least five hundred employees, any representative union which has obtained, during the election of the works council, one or more elected from the college of workers and employees and which, in addition, has at least one elected from any of the other two colleges may appoint an additional union delegate from among its members belonging to one or the other of these two colleges.

In the companies and organizations referred to in Article L. 421-1 which employ less than fifty employees, the representative unions may appoint a staff representative, for the duration of his term of office, as a union representative. Unless otherwise agreed, this mandate does not give entitlement to credit hours. The time available to the staff representative for the exercise of his mandate may be used under the same conditions for the exercise of his duties as union delegate.

Article L412-12
(Ordinance n ° 82-131 of February 5, 1982 art. 15 III Official Journal of February 6, 1982) (Law n ° 82-915 of October 28, 1982 art. 10 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 companies with at least two thousand employees which have at least two establishments with fifty or more employees each, each representative union may appoint a central company union representative, separate from the establishment union representatives.
Unless special provision is made, all the rules relating to the company union representative are applicable to the central union representative.

In companies with fewer than two thousand employees which have at least two establishments of fifty or more employees each, each representative union may appoint one of its establishment union representatives in order to also exercise the functions of central union delegate. ‘business.

Article L412-13
(Law n ° 82-915 of October 28, 1982 art. 10 II Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 84-575 of July 9, 1984 art. 63 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 union representatives from each union section in each company or establishment is set by decree of the Council of State, taking into account the number of employees.
The number thus fixed may be exceeded in application of the provisions of the third paragraph of article L. 412-11 and of the first paragraph of article L. 412-12.

The workforce is calculated under the conditions provided for in Article L. 412-5.

Article L412-14
(Law n ° 82-915 of October 28, 1982 art. 10 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 union representative (s) must be over eighteen years of age, have worked in the company for at least one year and have not incurred any of the sentences provided for in articles L. 5 and L. 6 of the electoral code.

The period of one year provided for in the above paragraph is reduced to four months in the case of setting up a business or opening a business. In temporary work companies, the seniority condition provided for in the previous paragraph is set at six months for temporary workers. It is assessed by totaling the periods during which these employees were linked to these companies by temporary employment contracts during the eighteen months preceding the appointment of the union representative, this period being reduced to six months in the case of the creation of a union representative. business or establishment.

The functions of union delegate are compatible with those of employee representative, employee representative on the works or establishment committee or union representative on the works or establishment committee.

Article L412-15
(Law n ° 82-915 of October 28, 1982 art. 11 I Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 85-10 of January 3, 1985 art. 21 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 conditions for the appointment of legal or contractual union representatives fall within the sole jurisdiction of the district court which rules in the last resort. The appeal is only admissible if it is lodged within the fifteen days following the completion of the formalities provided for in the first paragraph of Article L. 412-16.
After this period, the designation is purged of any defect without the employer being able to subsequently plead an irregularity to deprive the designated delegate of the benefit of the provisions of this section.

The district court rules within ten days without costs or form of procedure and on simple warning given three days in advance to all interested parties. 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.

In the event of a significant and lasting reduction in the workforce below fifty employees, the abolition of the mandate of union delegate is subject to an agreement between the head of the company and all the representative union organizations. In the absence of agreement, the departmental director of labor and employment may decide that the mandate of union delegate ends.

Article L412-16
(Law n ° 82-915 of October 28, 1982 art. 11 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)The names of the union representative (s) are brought to the attention of the company manager under the conditions set by decree. They must be posted on signs reserved for union communications.

The copy of the communication addressed to the head of the company is simultaneously sent to the competent labor inspector or to the authority which takes its place.
The same procedure is applied in the event of replacement or termination of functions of the delegate.

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 union delegate or the central union delegate remains when the company which is the subject of the modification retains its legal autonomy. The same applies when the modification relates to an establishment within the meaning of Article L. 412-13.

Article L412-17
(Law n ° 73-4 of January 2, 1973 Official Journal of January 3, 1973) (Law n ° 82-915 of October 28, 1982 art. 11 III Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 84-575 of July 9, 1984 art. 50 Official Journal of July 10, 1984) (Law n ° 85-772 of July 25, 1985 art. 116 Official Journal of July 26, 1985) (Law n ° 2001-152 of February 19, 2001 art. 1 I Journal Official of February 20, 2001)

In companies with less than three hundred employees and in establishments belonging to these companies, the union representative is, by right, the union representative on the works or establishment committee. As such, the union representative is the recipient of the information provided to the works or establishment committee.

The provisions of the previous paragraph are applicable to the normal renewal deadline for the works or establishment committee.

For the performance of their duties, union representatives may, during delegation hours, travel outside the company; they can also, both during delegation hours and outside their usual working hours, move around freely in the company and make all the contacts there necessary for the accomplishment of their mission, in particular with an employee in his position of work provided that it does not cause significant hindrance to the accomplishment of the work of the employees.

Article L412-18

(Law n ° 82-915 of October 28, 1982 art. 12 Official Journal of October 29, 1982 AUROUX LAW) (Law n ° 85-98 of January 25, 1985 art. 227 Official Journal of January 26, 1985) (Law n ° 94- 475 of June 10, 1994 art. 96 V Official Journal of June 11, 1994) (Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)

The dismissal of a union delegate can only take place after authorization by the labor inspector or the authority which takes its place. However, in the event of serious misconduct, the business manager has the right to provisionally order the immediate dismissal of the person concerned.
This decision is, on pain of nullity, motivated and notified to the labor inspector within forty-eight hours of its taking effect.

If the dismissal is refused, the layoff is canceled and its effects automatically terminated.

The same procedure is applicable to the dismissal of former trade union delegates for twelve months after the termination of their functions, when they have been exercised for at least one year.
It is also applicable to union representatives created by collective agreements or agreements.
The same procedure applies when the letter from the union notifying the employer of the appointment of the union delegate has been received by the employer, or when the employee has proved that the employer is aware of the imminence of his designation as union delegate, before the employee has been invited to the interview prior to the dismissal provided for in article L. 122-14.

When a union delegate or a former union delegate fulfilling the conditions referred to in the fourth paragraph above is included in a partial transfer of a business or establishment, by application of the second paragraph of article L. 122-12, the transfer of this employee must be subject to the prior authorization of the labor inspector who ensures that the employee is not subject to a discriminatory measure. If the transfer authorization is refused, the employer must offer the employee a similar job with equivalent remuneration in another establishment or another part of the company.

The union representative bound to the employer by a fixed-term employment contract benefits from the same guarantees and protections as those granted to employee representatives and members of the works council, in accordance with Articles L. 425-2 and L. 436 -2.
These provisions are applicable during the periods provided for in Articles L. 425-1 and L. 436-1.
In seasonal branches of activity, these periods of protection are extended by a period equal to the usual period of interruption of the employee’s activity.

The interruption due to the temporary work contractor or the notification he has made of the non-renewal of the assignment of a temporary worker, union delegate, is subject to the procedure provided for above.
The rule provided for in the above paragraph is applicable in the case of the decision provided for in the last sentence of Article L. 423-10.
In the event of reorganization or judicial liquidation, any dismissal of an employee mentioned in the previous paragraphs is subject to the procedure defined in this article.

Article L412-19
(Law n ° 82-915 of October 28, 1982 art. 13 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 annulment by hierarchical appeal by the competent minister of a decision of the labor inspector authorizing the dismissal of an employee mentioned in article L. 412-18 takes precedence, for the employee concerned and if he so requests in a period of two months from the notification of the decision, right to reinstatement in his job or in an equivalent job.
It is the same in the case where, except suspension of execution ordered by the Council of State, the administrative judge annulled a decision of the labor inspector or the competent minister authorizing such a dismissal.

When the annulment of the authorization decision has become final, the union representative is entitled to payment of compensation corresponding to the totality of the damage suffered during the period which elapsed between his dismissal and his reinstatement. he requested it within the time limit provided for in the first paragraph, or the expiry of that time limit otherwise. This payment is accompanied by the payment of contributions relating to said compensation, which constitutes an additional salary.

Article L412-20
(Law n ° 82-915 of October 28, 1982 art. 14 Official Journal of October 29, 1982 AUROUX LAW)(Law n ° 85-772 of July 25, 1985 art. 104 Official Journal of July 26, 1985)

(Law n ° 2001-152 of February 19, 2001 art. 1 I Official Journal of February 20, 2001)

Each union delegate has the time necessary to perform his duties. This time is at least equal to ten hours per month in companies or establishments employing fifty to one hundred and fifty employees, fifteen hours per month in companies or establishments employing one hundred and fifty-one to five hundred employees and twenty hours per month in companies or establishments employing more than five hundred employees. This time may be exceeded in exceptional circumstances.
In companies or establishments where, in application of Article L. 412-11, several delegates are appointed for each union section, they may share the time available to them under the first paragraph above; they inform the company manager.

The central union representative provided for in the first paragraph of article L. 412-12 has twenty hours per month to perform his duties. These hours are in addition to those available to him in a capacity other than that of establishment union delegate.
In addition, each union section has, for the benefit of its union representative (s) and the employees of the company called upon to negotiate the agreement or the company agreement, an additional global credit within the limit of a period that may not exceed ten hours per year in companies employing at least five hundred employees and fifteen hours per year in those employing at least one thousand employees, with a view to preparing for the negotiation of this convention or this agreement.

These delegation time are automatically considered as working time and paid on the normal due date. In the event of a dispute by the employer of the use made of the time thus allocated,

The hours used to participate in meetings which take place at the initiative of the entrepreneur cannot be deducted from the hours fixed above.

In temporary employment companies, delegation hours used between two missions, in accordance with contractual provisions, by a temporary employee union representative for the exercise of his mandate are considered as working hours. They are deemed to be attached, with regard to their remuneration and the related social charges, to the last employment contract with the temporary employment company under which he was appointed as union delegate.

Article L412-21
(Law n ° 82-915 of October 28, 1982 art. 15 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 provisions of this chapter do not preclude conventions or agreements containing more favorable clauses, in particular those relating to the establishment of union representatives or central union representatives in all cases where the legislative provisions have not made compulsory this institution.
No limitation may be made to the provisions relating to the exercise of the right to organize, as defined by this chapter, by memorandum or unilateral decision of the employer.

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