The 2017 labor code reform considerably reframed, if not restricted, the ability of the social partners to seek assistance within the framework of their prerogatives. While the question of the co-financing of certain expertise has most often been raised to illustrate this limited capacity, it should be noted that the leeway offered to works councils to take up the economic, financial and social issues within their scope has also been drastically reduced.
Until the mandatory passage to the CSE, effective since January 1, 2020, the case law allowing a works council to use a chartered accountant to assist it in the context of the annual review of the accounts and the situation of the establishment was consistent and established the question of the autonomy of the head of establishment as a main key element.
The transition to the CSE has very seriously reshuffled the cards by limiting the use of chartered accountants to the sole scope of social policy under certain conditions and provided that the operating agreement of the CSE (CSE Central in this case) does not provide that the competence would come under the sole CSE Central.
In the absence of an agreement (or if the agreement signed by the OSRs provides for nothing other than the strict application of the texts provided for by the ordinances) consultation on social policy, working conditions and employment is conduct every year at CSE Central level et at the level of the establishments when specific adaptation measures are planned for these establishments (L.2312-22). The right to an expert for an establishment CSE would therefore apply within the framework of this information/consultation procedure.
It should therefore be noted that only the consultation on social policy, working conditions and employment is affected by this “leniency”: the ordinances have thus removed any capacity for an establishment CSE to take up economic and financial issues. via the support of a chartered accountant (unless otherwise agreed).
The first crucial point to identify is therefore the content of the operating agreement. A major issue when the next elections are already scheduled and many agreements will be (re) negotiated. The new rules allow the parties to provide that the CSE Central is the only one competent in matters of consultation on social policy and therefore of recourse to an expert. In such a configuration, the supremacy of the company agreement would annihilate any possibility of consultation of an establishment CSE and therefore of recourse to a chartered accountant.
The decision of the Court of Cassation in its report of March 9, 2022 confirms this analysis: the establishment CSE is unable to appoint a chartered accountant if the operating agreement reserves consultations only to the Central CSE (Cass. soc., March 9, 2022, n° 20-19.974 FB).
Insofar as the operating agreement would leave (tacitly or not) the establishments the opportunity to be consulted, the teaching of the judgment of February 16, 2022 makes it possible to clarify the conditions under which the body could invoke its right to be consulted and in fact grant him the ability to seek the assistance of a chartered accountant.
The Court points out that, unless otherwise provided by collective agreement (the famous operating agreement), consultation on social policy, working conditions and employment is conducted both at central level and at establishment level when specific adaptation measures are planned within these establishments and which fall under the responsibility of the head of this establishment.
The Court of Cassation confirms, if necessary, that, when these specific provisions exist, the right to consultation automatically generates the right to have recourse to an expert.
In addition to the question of the operating agreement, and if the question of the management autonomy of the person in charge of the establishment was invoked, the decision of the Court retains as the only valid criterion the fact of presenting within an establishment specific adaptation measures as an event giving rise to the right to consultation and expertise.
On reading this decision, the existence of a specific order for departures on leave, of a training plan for the employees of the establishment or even the fact of inviting union representatives to negotiate for an amendment to the profit-sharing specific to the establishment, are elements characterizing the specific adaptation measures.
Similarly and by extension, it would appear logical to consider that:
the existence of specific elements of remuneration within the establishment
NAO carried out on the perimeter of an establishment
working conditions specific to an establishment requiring specific adaptations of the DUERP and the PAPRIPACT
a collective agreement specifically applicable within an establishment.
can also be considered as specific adaptation measures legitimizing the right to consultation and therefore to expertise on the perimeter of the establishment.
Conversely, in the event of specific adaptation measures common to several establishments, only the Central CSE would remain competent in matters of consultation.
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