In accordance with Article L. 2312-8 of the Labour Code, the economic and social committee (CSE) is consulted on measures concerning employment and working conditions, as well as on any significant development changing the work organisation and conditions that the employer is considering, prior to their implementation.
In order to promote a rapid return to business under conditions that protect the health and safety of employees, the government wanted to enable businesses to conduct CSE consultations under adapted conditions. Clarifications on the measures adapting the operating rules of the CSE in the time of Covid-19.
Article 9 of Ordinance No. 2020-460 of 22 April 2020 establishing various measures taken to deal with the Covid-19 pandemic opened up the possibility of making exceptions to statutory and contractual time periods for consulting the CSE and the use of expert evaluations concerning employer decisions for the purpose of dealing with the economic, financial, and social consequences of the spread of the Covid-19 pandemic. Ordinance No. 2020-507 of 2 May 2020 also provided, in this case, for a reduction of the time limits for convening the CSE. Two decrees, No. 2020-508 and No. 2020-509 of 02 May 2020 have clarified the length of such time periods.
1. Time limit for convening the CSE
As an exception to the statutory time limits or time limits established by contractual provisions applicable to the business, Article 1 of Ordinance No. 2020-507 shortened the time periods applicable to sending the agenda to the CSE when the consultation concerns the employer’s decisions for the purpose of dealing with the economic, financial, and social consequences of the spread of the Covid-19 pandemic. Those time periods are set at:
- at least two days before the CSE meeting (instead of three);
- at least three days before the Central CSE meeting (instead of eight).
These exceptional convening time periods are not applicable to information and consultation procedures conducted in the context of the following procedures:
- The dismissal of ten or more employees in a single 30-day period;
- A collective performance agreement mentioned in Article L. 2254-2 of the Labour Code.
Such arrangements are applicable to the time periods that start running between the publication of the Ordinance, i.e., 3 May 2020 (Ord inance No. 2020-507 of 2 May 2020, Art. 1 V and Decree No. 2020-509 of 2 May 2020, Art. 1) and 23 August 2020 (Decree No. 2020-509 of 2 May 2020, Art. 1).
2. Time periods applicable to consultations and expert evaluations
Ordinance No. 2020-507 supplements Article 9 of Ordinance No. 2020-460 of 22 April 2020, which provides for an adjustment, by decree, of the time periods, as applicable by an exception to the applicable contractual provisions, regarding:
- the consultation and information of the CSE regarding the employer’s decisions for the purpose of dealing with the economic, financial, and social consequences of the spread of the Covid-19 pandemic;
- the conduct of expert evaluations performed at the request of the CSE when it has been consulted or informed in such a case.
With regard to the information and consultation of the committee
As a reminder, in the absence of a specific statutory provision establishing the consultation time period, the CSE is considered to have been consulted and issuing a negative opinion at the end of a period of one month.
As an exception to this provision, when the employer’s decision is for the purpose of dealing with the economic, financial, and social consequences of the spread of the Covid-19 pandemic, Decree No. 2020-508 of 2 May 2020 provides that:
- for the consultations provided for in Article R. 2312-6 of the Labour Code, the CSE is considered to have been consulted and issuing a negative opinion at the end of a period of eight days (instead of one month);
- In the event of an expert evaluation, this time period is changed to 11 days for the CSE (instead of two months) and 12 days for central CSE (instead of three months);
- In the event of the intervention of one or more expert evaluations in the context of consultations held both at the level of the central CSE or multiple CSEs, this time period is also changed to 12 days (instead of three months);
- The minimum time period between the sending of the opinion from each CSE to the central CSE and the date on which the later is considered to have been consulted and issuing a negative opinion is one day (instead of 15 days).
Lastly, Article 2 of Decree No. 2020-508 specifies that they are not applicable to information and consultations conducted in the context of one of the following procedures:
- The dismissal of ten or more employees in a single 30-day period;
- A collective performance agreement;
- The recurring information and consultations mentioned in Article L. 2312-17 of the Labour Code.
Such adjustments are applicable to time periods that start to run between the publication of the decree, i.e., 3 May 2020 and 23 August 2020 (Decree No. 2020-508 of 2 May 2020, Art. 3). However, when the time periods that started to run prior to this date have not yet expired, the employer has the option of interrupting the procedure in question and undertake, starting from that same date, a new consultation procedure in accordance with the rules described above (Ordinance No. 2020-507 of 2 May 2020, Art. 1).
Concerning the expert evaluation modalities
Issued in application of Ordinance No. 2020-460, Decree No. 2020-508 of 2 May 2020 provides that, starting from his appointment, the expert has:
- 24 hours (instead of three days) to ask the employer for all additional information needed to perform his assignment. The employer must respond to this request within 24 hours (instead of five days);
- 48 hours (instead of 10 days) to notify the employer of the provisional cost, scope, and duration of the expert evaluation, or if a request is sent to the employer, 24 hours starting from their response.
The employer has a period of 48 hours to petition the judge for each of the appeal cases provided for in Article L. 2315-86 of the Labour Code (disputing the need for an expert evaluation; the choice of expert, the provisional cost, scope, or duration of the expert evaluation; the final cost of the expert evaluation).
Furthermore, the minimum time period between the delivery of the report by the expert and the expiration of the committee’s consultation periods is set at 24 hours (versus 15 days usually).
Lastly, , Article 2 of Decree No. 2020-508 specifies that adjustments to the information, consultation, and expert evaluation periods are not applicable to information and consultation procedures conducted in the context of one of the following procedures:
- The dismissal of ten or more employees in a single 30-day period;
- A collective performance agreement;
- The recurring information and consultations mentioned in Article L. 2312-17 of the Labour Code.
Such adjustments are applicable to time periods that start to run between the publication of the decree, i.e., 3 May 2020 and 23 August 2020 (Decree No. 2020-508 of 2 May 2020, Art. 3). However, when the time periods that started to run prior to this date have not yet expired, the employer has the option of interrupting the procedure in question and undertake, starting from that same date, a new consultation procedure in accordance with the rules described above ( Ordinance No. 2020-507 of 2 May 2020, Art. 1).
It appears clear from these provisions that only the consultation periods for a decision by the employer for the purpose of dealing with the economic, financial, and social consequences of the spread of the Covid-19 pandemic, and for which a specific consultation time period has not been established by the statutory and regulatory provisions in effect, are concerned by such adjustments.
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