OD FLASH | Company agreement referendum: votes cast in favor of a category trade union count

Cass. soc. 22-1-2025 no 23-21.936 F-B, Fédération des services CFDT c/ Sté Codirep

In application of article L. 2232-12 of the French Labour Code, the validity of an agreement is subject to signature by the employer and one or more representative trade union organizations having received more than 50% of the votes cast in favor of representative organizations in the first round of the last professional elections. If the 50% threshold is not reached, the representative trade union organizations having received more than 30% of the votes cast in favor of representative organizations may request an employee consultation aimed at validating the agreement.

Is it possible to take into account the electoral audience of a category trade union when assessing the threshold of more than 30% for requesting an employee consultation?

In this case, the company had entered into mandatory annual negotiations (NAO) concerning remuneration, working hours and the sharing of added value within the company. The agreement, which concerned all employees, was signed by three trade unions: the CGT (17.36%), the CFTC (23.79%) and the CFE-CGC (7.56% for all categories and 51.65% for the executive electoral college).

This agreement, which received 48.71% of the votes cast, was not valid as the threshold of over 50% had not been reached.

Two trade unions, the CFE-CGC and the CFTC, then requested that an employee consultation be organized to validate the agreement.  The agreement was widely approved in the referendum (66% of employees were in favor).

The CFDT and an employee took the matter to court, arguing that the trade unions that had requested the organization of a referendum had not received more than 30% of the votes cast. They requested that the referendum be canceled and that the negotiated agreement be deemed unwritten.

In support of their claim, they argued that the CFE-CGC union was not representative, having failed to win at least 10% of the electoral vote across all electoral colleges. The votes obtained by this union should therefore not be taken into account in determining the 30% threshold for employee consultation.

The court dismissed the CFDT and the employee on the grounds that the CFE-CGC, having obtained 51.65% of the votes cast in the executive electoral college, had reached the 10% threshold and was therefore representative. The votes obtained by this union should therefore be taken into consideration.

The French Supreme Court (Cour de cassation) upheld this reasoning, ruling that a representative category trade unionwhich has signed a company-wide agreement may, together with a representative inter-category trade union, request an employee consultation to validate the agreement, provided that together they have received more than 30% of the votes cast, all electoral colleges combined.

In this case, the CFTC and CFE-CGC had received 31.35% of the votes cast, and could therefore request an employee consultation to validate the agreement.

This solution is in line with the Supreme Court case law. Indeed, it is a matter of principle that a representative category trade union can negotiate and sign a company-wide agreement with representative inter-category trade unions, without having to establish its representativeness within all categories of personnel. (Cass. soc., May 31, 2011, n° 10-14.391). The commented judgement confirms that a representative category trade union must also be able to request employee consultation.

It should be noted, however, that a representative category trade union cannot sign an inter-category agreement on its own (Cass. soc., July 2, 2014 n°13-14.622).