The so-called "Rebsamen" Law No. 2015-994 of August 17, 2015 amended the rules and the scope of the so-called unified personnel delegation ("DUP"). French Decree No. 2016-345 of March 23, 2016 completed this reform (I). From a practical standpoint, the new DUP, which remains voluntary, should be used carefully and in priority within companies with a limited headcount (II).
I. The new "DUP"
The DUP resulting from the Rebsamen Law now allows companies with fewer than 300 employees to combine the personnel delegates ("DP"), works council ("CE") and Hygiene, Safety and Work Conditions Committee (so-called "CHSCT") within a single body 1 . Previously, this was possible only for companies with fewer than 200 employees and related only to the DPs and CE.
Companies now have the opportunity to set up this revised DUP when DPs, CEs or CHSCTs are initially put into place or when the membership of one of these bodies is renewed. Upon such renewal, the terms of office of the current members would be extended or reduced up to a limit of two years, so that such terms coincide with the date of the implementation of the revised DUP 2 .
The Rebsamen Law also provides for the possibility, for permanent and alternate members, to divide the hours which may be legally devoted to their representation tasks (so-called “delegation hours”, which vary according to the headcount) among themselves, up to a limit of one and half times the monthly allocation of hours that is usually granted, but also to accrue such hours up to a duration of 12 months 3 .
Within the revised DUP, the personnel delegates, works council and CHSCT retain all of their powers. The three representative bodies therefore have not been merged into one but the attributions of the three mandates have been granted to the same elected employees. The DUP thus enables to transfer to a single person the different personnel representative mandates and accordingly to reduce the number of representatives, who are considered "protected" employees benefiting from a certain protection against dismissal 4 .
The new DUP meets at least once every two months (instead of once a month as previously), convened by the employer. Up to three meetings per year may be held by videoconference 5 . A single opinion is to be rendered by the DUP in the same time frame as that which applies to the works council, i.e. within one month as from the disclosure by the employer of the relevant information 6 , failing which the DUP will be deemed to have rendered a negative opinion.
The Rebsamen Law finally provides that if the DUP members request an expert investigation in regard to matters for which both the CE and the CHSCT are competent, there will be a single expertise, as opposed to two separate ones 7 .
If the employer's headcount falls below 50 employees, the DUP would automatically cease to exist, without the need to obtain authorization from the French labor authorities (so-called "DIRECCTE"), as was the case previously. The personnel delegates would carry out their own attributions until the end of their mandate if the headcount is at least 11 employees.
II. A simplified mechanism for social dialogue, to be used cautiously
The ambition displayed by the Minister of Labor, Mr. Rebsamen, was to simplify, while maintaining, the functioning of the personnel representative bodies, especially for small companies.
In practice, the new DUP should simplify social dialogue within small companies and enable more efficient exchanges, notably on transversal issues which prior required parallel consultations with the CE and CHSCT (for example, on working conditions or restructuring plans). Article L. 2326-5 of the French Labor Code effectively provides for a common agenda for each meeting. The meetings are no longer monthly — as before as regards to the works council — but every two months, bearing in mind that at least four of these meetings must, all or partially, deal with matters falling within the scope of the CHSCT's powers ( i.e. , work conditions) 8 . The calendar for meetings is thus substantially reduced. This simplified functioning should enable better social dialogue and allow the employer and personnel representatives to focus overall on more strategic and real issues, instead of segmenting the discussions according to the representative body.
Such benefits should however be tempered, especially for companies with more than 150 employees in which the organization of meetings can in practice be complex. The Decree of March 23, 2016 has significantly increased the number of representatives attending the meetings, with companies having between 250 and 299 employees now being required to organize meetings with 24 elected representatives (12 permanent and 12 alternate) 9 . Similarly, organizing grouped meetings every two months instead of monthly will likely increase the number of topics on the agenda and, therefore, the duration of the meetings themselves, which may well complicate the holding of the meetings in practice. All the more so since the grouping of the 17 former yearly information consultation requirements into three big consultation topics 10 raises a number of practical questions in terms of agenda and could trigger lengthy consultations.
Moreover, because there will be fewer meetings, secondary issues which relate to day-to-day employee issues and sometimes enabled to improve labor relations may well not be added to the DUP meeting agendas, which could also have an impact on the social dialogue. Before deciding to put into place this new DUP, employers should therefore reflect on whether or not the new DUP will improve and facilitate the functioning and management of personnel representative bodies, and not block it, in light of the existing unions within their company.
