The waiver of the right to be appointed as a union representative is not valid for the whole electoral cycle

Cass. soc., April 19 2023, 21-23.348

In order to limit the number of cases where there is no union representative, the law n°2018-217 of 29March 2018 provided for the possibility for representative trade union to appoint as union representative an employee who did not obtain 10% of the votes cast in the last professional elections, when all the elected representatives who met this condition, have waived, in writing, their right to be appointed as union representative (Article L. 2143-3, § 2, Labour Code).

Although the Court of Cassation has already been asked several times about the interpretation of this provision, the question of the scope of this waiver remained unresolved.

Is this waiver valid for the entire electoral cycle?

The Court of Cassation has ruled on this question for the first time.

In this case, an employee who had obtained more than 10% of the votes cast in the last professional elections had been appointed as a union representative. A few months later, this employee waived her appointment in writing and the union appointed one of its members to replace her.

A year later, and during the same electoral cycle, the union reappointed her to replace another union representative, despite her previous waiver of her first mandate.

Claiming that this appointment was irregular on the grounds that the waiver of the right to be appointed as a union representative was valid for the entire electoral cycle, the employer brought an action to the Labour Court to have it annulled.

The Labour Court, approved by the Court of Cassation, rejected this request.

In this case, the Court of Cassation specifies that the waiver by the elected representative or the candidate, having received at least 10% of the votes cast in the first round of the last professional elections, of the right to be designated as a union representative, which allows the representative trade union to designate a member or a former elected representative, does not deprive the representative trade union of the possibility of subsequently designating, in the course of the same electoral cycle, the author of the waiver to be designated as a union representative.

The Court of Cassation thus rejects the employer’s argument and indicated, for the first time, that the waiver of the right to be designated as a union representative is not definitive for the rest of the electoral cycle.

It follows that such a waiver is only valid :

• For the designation for which it was given ;
• And as long as its author did not reversed his decision by expressing his wish to be designated again as a union representative.

Therefore, a representative trade union retains the possibility of appointing as a union representative an employee who has previously waived his first mandate as a union representative during the same electoral cycle, without waiting for the next professional elections.

This position, although unprecedented, is in line with the spirit of the law n°2018-217 of 29 March 2018 and the legislator’s desire to “avoid the absence of union representatives in companies”.