OD FLASH | Workplace elections: the DDETS decision allocating staff among electoral colleges is not subject to a prior adversarial procedure

In the absence of the double majority required to validate the pre-electoral agreement protocol, a company referred the matter to the departmental director of employment, labour and solidarity (DDETS) so that he would carry out the allocation of staff among the electoral colleges and the allocation of seats among the staff categories. The DDETS issued a decision of rejection, refusing to proceed with the allocation proposed by the company. The company then brought the matter before the judicial court seeking the annulment of that decision and the setting of the allocation by the court.

After the judicial court dismissed all of the company’s claims, the company appealed to the Court of Cassation, raising two sets of grievances.

In a first branch, the company argued that the administrative decision had been taken in disregard of the adversarial principle. The Court of Cassation dismisses this grievance as ineffective. It holds that “the decision by which the regional director of enterprises, competition, consumption, labour and employment, now the DDETS, carries out the allocation of staff among the electoral colleges, which is not an unfavourable individual administrative decision requiring a statement of reasons, is not subject to a prior adversarial procedure”. Since the allocation carried out by the administration does not constitute an unfavourable individual decision that must be reasoned within the meaning of Articles L. 121‑1 and L. 211‑2 of the Code on relations between the public and the administration, it escapes the requirement of a prior adversarial procedure.

In its other branches, the company contested the Judicial Court’s finding that it had breached its duty of loyalty in the conduct of pre-election negotiations. On this point, the Court of Cassation overturned the lower court’s decision pursuant to Article L. 2314‑13, paragraphs 1 and 3, of the Labor Code. It noted that “only when, following a good-faith attempt at negotiation, a pre-election agreement could not be reached may the administrative authority decide on the allocation of seats and personnel among the electoral colleges.” In practice, the employer—who is bound by a duty of good faith—must therefore provide the unions participating in the negotiations, “upon their request, with the information necessary to verify the company’s workforce and the accuracy of the electoral rolls.” In this case, while the lower court had found a breach of this obligation by holding that the mere transmission of the employee roster did not demonstrate the seriousness and good faith of the negotiations, the Court of Cassation held that such a breach could not be established since the labor unions failed to prove that they had requested additional documents beyond the single employee roster, which had already been provided to them. By ruling in this manner, the court failed to draw the legal conclusions from its own findings and violated the aforementioned provision.

The Court accordingly quashes and sets aside the judgment in all its provisions and remits the case to another judicial court. The ruling thus provides a twofold clarification: on the one hand, the allocation decision taken by the DDETS need not comply with a prior adversarial procedure; on the other hand, the employer’s duty of good faith in pre-electoral negotiations cannot be deemed breached where the unions have not requested any document beyond those actually communicated.