Publications

20/04/2020

[COVID-19] Deciphering ERB Emergency Measures

Updated information, as of the date of publication of this article

Ordinance no. 2020-389 of 1st April, 2020 has made the use of videoconferencing more flexible and allows, as a temporary derogation, the organization of meetings of these committees by conference call and instant messaging. However, the employer may only use instant messaging in a subsidiary manner.

Decree No. 2020-419 of 10 April 2020 on the procedures for consulting employee representative bodies (ERB) during a state of health emergency specifies the procedures for applying the exemptions provided for in the Ordinance.

In the context of a state of health emergency, these measures have the double advantage of ensuring that such bodies are continuously functioning, and in particular by allowing them to be consulted on the employer’s decisions induced by the health crisis, while respecting the lockdown measure.

These derogatory and temporary provisions are applicable to the meetings of all employee representative bodies, governed by the provisions of the Labour Code, convened until the end of the state of health emergency.

  1. Expanding the use of Videoconferencing
  • – For meetings convened under normal circumstances

The use of videoconferencing to convene a SEC meeting may be authorised by agreement between the employer and the elected members of the employee representative bodies.

In the absence of agreement, this recourse shall be limited to three meetings per calendar year.

Safeguards attached to the videoconferencing device

When the SEC meets by videoconference, the technical system implemented shall guarantee the identification of the committee members and their effective participation, by ensuring the continuous and simultaneous transmission of the sound and image of the deliberations.

Guarantees attached to the vote

The initiation of deliberations is subject to verification that all members have access to technical means that satisfy the guarantees attached to the videoconferencing system as described above. Voting shall take place simultaneously. To this end, participants have the same deadline for voting as from the opening of voting operations indicated by the Committee Chairman.

When voting by secret ballot, the voting device must ensure that the identity of the voter cannot at any time be linked to the expression of his or her vote. Where such voting is organised by electronic means, the system used must ensure the confidentiality of the data transmitted and the security of the addressing of the means of authentication, of the issuing, recording and counting of votes.

  • – For meetings convened until the end of the health emergency

The use of videoconferencing is authorised for all meetings of all employee representative bodies governed by the Labour Code, not only those of the SEC and the Central SEC.

If an agreement with the members of the SEC is not required, the employer must nevertheless inform them in advance of the use of videoconferencing.

The limit of three meetings per calendar year legally provided for in the absence of an agreement with the SEC applies only to meetings organised outside the period of the state of public health emergency.

  1. The use of conference calls

The use of conference calls is not normally permitted for SEC meetings. The Ordinance therefore introduces this possibility on an exceptional basis for meetings convened until the end of the health emergency.

The chairperson of the body shall inform its members of the meeting taking place by conference call. This information shall follow the rules applicable to the regularly convened meetings.

The guarantees attached to the telephone conference system are the same as for videoconferencing, with the sound being continuously and simultaneously broadcast during the deliberations.

The guarantees attached to the vote are the same as in the case of videoconferencing.

  1. The use of instant messaging

The use of instant messaging is not normally permitted for SEC meetings. The Ordinance therefore introduces this possibility on an exceptional basis for meetings convened until the end of the health emergency if videoconferencing or telephone conferencing cannot be used or if a company agreement provides for it.

The chairperson of the body shall inform its members of the meeting by instant messaging and shall specify the date and time of its commencement and the date and time at which it will end at the earliest. This information shall follow the rules applicable to the regularly convened meetings.

The guarantees attached to the instant messaging system are the same as those for videoconferencing, with instant communication of written messages during deliberations.

However, a number of particularities should be highlighted:

  • – The proceedings shall be closed by a message from the chairperson of the body, who may not intervene before the deadline set for the closure of the deliberations;
  • – At the end of the period set for the expression of votes, the chairperson of the body shall send the results to all its members.