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Clarification of the employees ’referendum’ procedure for the purpose of validating a minority agreement

French Supreme Court, October 9, 2019, n° 19-10.816

The French Supreme Court recently ruled first that the ‘referendum’ request (i.e., for the consultation of employees for the purpose of validating a minority company collective agreement) made by one or more representative trade union organisations representing more than 30% of the votes is not conditioned upon its prior notification to the other representative trade unions.

The Court thus allows the employer to make this notification in the event of failure by the union that requested the consultation within one month. The employer’s notification is not a breach of the employer’s neutrality obligation.

The French Supreme Court moreover puts an end to an uncertainty concerning the employees invited to participate in such a “referendum” consultation: are they all the employees of the site or, within this site, only the employees to be covered by the agreement?

In the present case, the specific protocol concluded to organize the consultation provided for the exclusion of the categories of staff not covered by the agreement.

The Court on the contrary considered that, pursuant to article L 2232-12 of the French Labour Code, all employees of the site meeting the conditions to be voters must be consulted.