Members of staff delegations and their advisers and experts shall be bound by professional secrecy in all matters relating to manufacturing processes.
In addition, they are required to maintain the secrecy of information of a confidential nature and expressly designated as such by the head of the company or his representative in the legitimate interests of the undertaking, both with regard to employees and to third parties, unless the employees or third parties are bound by an obligation of confidentiality in their turn.
The head of the company may refuse to provide information or to carry out consultations when the nature of the information or consultation is such that, according to objective criteria, it would seriously hinder the operation, management or future of the company or of the company itself, and could be prejudicial to it or could compromise a planned operation.
Members of the delegation who consider that the classification of information as confidential or the refusal to communicate information or consultations is improper may appeal to the Director of the Inspectorate of Labour and Mines within two weeks.
The decision of the Director or his representative must be sent to the parties no later than eight days after the request has been sent. It shall be in writing and duly substantiated and shall take into account the interests and needs of the employees and their representatives and the economic necessities and constraints which must be taken into account by the head of the company in the exercise of his power to manage the company or in the exercise of his power to manage the company in accordance with the principles of good management.
Within 15 days of its notification, a decision of the Director of the Inspectorate of Labour and Mines or his representative may be subject to an appeal to the Administrative Court for annulment.
An agreement to be reached between the head of the company and the staff delegation provides information on the theoretical development of the careers of the representatives who receive hourly credits corresponding to at least 50% of their normal working time in relation to a group of reference employees and sets out the measures necessary for the full reintegration of these representatives in their former job or in an equivalent job during or at the end of their mandate.
This agreement will also regulate the participation of all representatives in continuous professional training offered by the company, including training related to the position held prior to the mandate and, if necessary, training related to a new equivalent position to be held during or at the end of their mandate.
Protection of staff representatives against a change in an essential element of their employment contracts
During their term of office, the full and alternate members of the staff delegations, and the Health and Safety representative, may not be subject to a modification of an essential clause of their employment contract making Article L. 121-7 of the Labour Code applicable.
Where appropriate, the representatives may petition the Chief Judge of the Labour Tribunal, who shall rule urgently and as in summary proceedings, with the parties heard or duly summoned, to put an end to the unilateral modification of such a clause.
Protection against dismissal
The principle
Representatives may not, under penalty of nullity, be dismissed or summoned to a preliminary interview, even for serious misconduct, during their term of office.
Two options
Annulment proceedings
Within one month of the dismissal, a representative may petition the Chief Judge of the Labour Tribunal, who shall rule urgently and as in summary proceedings, with the parties heard or duly summoned, to declare the dismissal null and void and to order that that an employee’s status be maintained or, where appropriate, that the employee be reinstated.
Alternative: submit a claim for damages
A representative who has not exercised the annulment remedy may ask the Labour Tribunal to pronounce the contract terminated on the date of notification of the dismissal and to order the employer to pay damages, also considering the specific damages suffered as a result of the invalid dismissal in relation to the person’s status as a representative enjoying special protection. A representative exercising this option is to be considered involuntarily unemployed from the date of dismissal.
This action must be brought within three months of the notification of the dismissal.
Note: Choosing one of these two claims, annulment or damages, is irreversible.
Special case of company closure
The law provides that in the event of a total closure of the company, the mandate of the representatives ceases automatically with the cessation of activities.
Dismissal for serious misconduct
In the event of serious misconduct, the head of a company has the option of notifying the delegation of a dismissal. This decision must state precisely the fact(s) of which a representative is accused and the circumstances that are likely to give these the character of serious grounds.
The fact(s) or fault(s) likely to justify judicial termination on serious grounds may not be invoked after a period of one month from the day on which the party invoking it became aware of it, unless such facts have resulted in criminal proceedings within the month.
The time limit provided for in the preceding paragraph shall not apply where a party invokes previous misconduct in support of new serious grounds which it invokes within the time limit.
During the three months following the date of notification of the layoff, representatives retain their salary as well as the allowances and other benefits to which they would have been entitled if their contract had continued. These salaries, allowances and other benefits shall be definitively retained by the representative.
In the month following the lay-off, the representative may petition the Chief Judge of the Labour Tribunal, who shall rule urgently and as in summary proceedings, with the parties heard or duly summoned, to decide on the maintenance or suspension of the salary beyond the 3-month period, pending the definitive solution of the dispute.
A representative who does not wish to be retained or, where appropriate, reinstated, may apply to the Labour Tribunal within three months of being notified of the lay-off to obtain a ruling that the contract has been terminated and to issue an order that the employer pay damages taking into account the specific damage suffered as a result of the termination of the contract in relation to his status as a representative enjoying special protection. The representative exercising this option is to be considered as involuntarily unemployed.
Note : Choosing one of these two options is irreversible.
An employer may submit his application for judicial termination of the employment contract to the Labour Tribunal, if necessary by way of a counterclaim, not later than one month from the date of notification of the summons to appear before the Chief Judge of the Labour Tribunal.
If the Labour Tribunal refuses to grant the request, the effects of the exemption shall cease ipso jure;
If the Labour Tribunal grants this request, the termination shall take effect on the date of notification of the layoff.
If the employer does not initiate this procedure within the time limit, the employee may request the Chief Judge of the Labour Tribunal to order the continuation of the performance of the contract by all parties involved within 15 days of the expiry of the time limit, or, if the employee does not wish remain with the company or to be reinstated, petition the Labour Tribunal to state that the contract has been terminated and that an order be issued that the employer shall pay damages taking into account the specific damage suffered by the termination of the contract in relation to the employee’s status as a representative enjoying special protection. A representative exercising this option is to be considered as involuntarily unemployed.
Throughout this procedure, the released hours from which the representative benefited will be transmitted, if necessary, to the rest of the delegation in place, which will distribute them among its members
When a dismissed representative finds a new job
When a representative who has been dismissed takes up a new salaried or non-salaried job, the employer may apply to the president of the Labour Tribunal for the suspension of wages.
When a representative's contract is terminated and he/she must return any wages received from the employer
A representative whose contract has been terminated by the Labour Tribunal and for whom the president of the Labour Tribunal has ordered the salary to be maintained pending the final settlement of the dispute may, if ordered to reimburse an employer for the salary received in the meantime, apply to the director of ADEM for retroactive entitlement to full unemployment benefit up to the date of the final settlement of the dispute.
Before such representatives can receive retroactive unemployment benefits, they must provide proof of full or partial repayment of the wages received. In the absence of proof of full compliance with the ruling and at the request of the employer and the representative, the Director of ADEM shall transfer the amount of the unemployment benefit due to the representative directly to the employer, up to the amount corresponding to the ruling that has been passed and not yet paid.
This entitlement to full unemployment benefits shall be automatic, unless a representative has been convicted of a criminal offence for the same reasons as the dismissal. If this conviction occurs after the payment of all or part of the full unemployment benefit, the representative must reimburse ADEM for the amounts paid in this respect.
Protection of former members of the staff delegation and of candidates for election to the staff delegation
The above-mentioned provisions are applicable to the dismissal of former members of staff delegations and former Health and Safety representatives during the first six months following the expiry or end of their mandate, as well as to candidates for the functions of members of the delegations as soon as they are nominated for a period of three months. In case of contested elections followed by new elections, this period is extended until the date of the new elections.
