From a certain size, the employees of a company are required to organize themselves in order to ensure that their rights are respected. So, are there the staff representatives in charge of specific missions according to the employee representative body on which they depend. These are in fact employees elected or appointed to represent the personnel of a given company. These representatives benefit from some advantages and protections which we tell you about in this article.
What is a staff representative?
No matter what form the company takes, employees need someone to raise their voices to the employer. From a minimum of 11 employeesall companies are required to organize the election of Staff representatives (DP). When the number of employees increases to a minimum of 50, the company must set up a works council (THIS). Elected for a term of up to 4 years, staff representatives and the unions make up the works council. It should be specified that the Works Council is chaired by the employer.
Similarly, a company employing at least 50 people is required to put in place a health, safety and working conditions committee (CHSCT). This committee is made up of representatives appointed by the elected members of the works council, and staff representatives. As its name indicates, the CHSCT’s mission is to prevent and protect the physical and mental health and safety of employees.
Since January 2020, these various bodies have been replaced by the social and economic committee (CSE). However, they have various means to carry out their missions and numerous remedies in the event ofan offense of obstruction. Among other means of action, we can cite: delegation hours, premises, travel outside the “company, etc.”
Roles and missions of staff representatives
Since the consolidation of employee representative bodies in Social and Economic Committee, the roles and missions of the representatives are no longer quite the same. Let’s start by underlining the fact that the members of the CSE are elected by company employees. As for staff representatives, they are either elected or appointed. The union organization, as far as she is concerned, designates union representatives. A union delegate or representative may also be part of the social and economic committee. For this fact, special protection imposing recourse to labor inspection arises for the benefit of the employee.
Otherwise, a monthly credit of hours is made available to the elected member to enable him to properly fulfill his duties as a representative. All the members of the social and economic committee benefit from the right to display, financial and material resources. This allows employees who are members of the staff to sit at meetings of the CSE; to have information sharing sessions with peers; to take part in the development of preventive approaches to safety, health and working conditions; to act as a real relay between management and other employees; participate in preliminary interviews to assist employees.
The protection of staff representatives: how does it work?
Staff representatives have specific protection measures justified by the exercise of their mandate. As a result, they enjoy various protections against many professional inconveniences. These refer to dismissal, changes in professional situations, etc. the said protective measures take into account many factors. It is therefore necessary to proceed methodically to fully understand how it works.
Identification of beneficiary employee representatives and calculation of the duration of the protection period
Employees who have exercised, exercise or wish to exercise representative functions within a company may benefit from protective measures. These include the candidates for election, the elected members of the social and economic committee and the former staff representatives, the incumbents as well as their alternates. For the latter, they benefit from 6 months of protection after their last mandate. It is the same for the candidates for the elections. In the event of failure, they remain protected for 6 months following the submission of the application.
In addition, employees who have requested the organization of elections are also protected for the 6 months following their request. It should be noted that this protection can only benefit one employee per trade union organization. The first employee not mandated by a union organization who requests the holding of elections also enjoys this protection.
Trade union delegates are also protected. Indeed, union delegates or union representatives present within your CSE must be protected for 12 months. This period is to be counted since the interruption of their function. The function must have been exercised for a minimum of one year. For a company with at least 50 employees, the extension is 6 months. In addition, in the case of a resignation of the union delegate from his duties, for the date of resignation to be considered as the starting point of the interruption, the DS must have notified his union organization.
Protection of the employee staff representative in the event of dismissal
Termination of the employment contract of a protected employee is done in compliance with a certain precise procedure.
A procedure to follow
In the case of a protected representative, the employer must first resort to the classic dismissal procedure, ie summon him to a preliminary interview. The particularity here is that the employer is required to clearly state the reasons for which he plans to dismiss the employee.
After this first interview, the employer must schedule a second in which the works council will have to take part. At this meeting, the members of the works council will discuss the merits of the reasons for the dismissal. At the end of this meeting, minutes must be drawn up. This document will then be sent to the labor inspector. It is up to the latter to give a favorable opinion or not to the request for dismissal submitted by the employer. The latter has 15 days after the meeting with the Works Council to send his request to the inspectorate with the reasons for the dismissal well mentioned.
The opening of a contradictory investigation
The receipt of the minutes of the interview with the company committee by the labor inspector gives rise to a contradictory investigation. Carried out by the work inspector, the contradictory investigation consists of hearing the protected employee on the facts of which he is accused. Consequently, the labor authority invites him and explains to him the facts of which he is accused by his employer so that he can prepare his defence.
Moreover, the respondent will not be informed of the witnesses, if they are testimonies that could be harmful. After this discussion with the protected employee, the inspector proceeds, among other things, to:
- The verification of the dismissal procedure. The objective is to ensure that the employer has followed the procedure as provided by law;
- The cheking process reasons for dismissal. It is a question of understanding whether the dismissal is not linked to the functions of staff representative of the protected employee;
- Reflections beyond the facts mentioned in the minutes;
- Convince yourself of the legitimacy of this dismissal.
It is at the end of all these checks that the inspector can either authorize or refuse this dismissal.
The decision of the labor inspectorate
The labor inspector has a maximum of 15 days to respond to the request submitted by the employer. However, this period may be extended depending on the results of the contradictory investigation. However, if the decision of the inspection is favorable to dismissal, it is up to the employer to inform his employee. He must notify him of the fact that the inspector has authorized him to do so.
Dismissal of a personal representative without permission from the labor inspectorate
If, after investigation, the labor inspector gives an unfavorable opinion regarding the dismissal of a protected employee, it is clear that the latter cannot be dismissed. At the same time, his employer no longer wants him in his company. In such a context, there is an alternative worthy of recourse.
The use of reinstatement
The representative in question may appeal to a request for reinstatement in the same company. His employer can accept or the judge in chambers can order it. The representative may demand the payment of compensation in proportion to the number of days without work since the decision to dismiss the request for reinstatement.
In addition, the employee can decide not to return to work in this company. In this case, the employer will have to pay him his indemnities for breach of employment contract. In addition to this, he will receive all of his remuneration as staff representative until the end of his mandate. This same procedure applies in the event of a change in working conditions. Indeed, no change in working conditions is possible without the agreement of the protected employee.
Staff representatives are protected in their functions to prevent them from being victims of employers’ dissatisfaction. In the absence of agreement with the decision of the labor inspectorate in relation to a dismissal, the employee or the employer may appeal either to the Ministry of Labor (hierarchical appeal), or opt for a litigation before an administrative court.
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