The French Labor Code includes a certain number of themes for which “in the absence” or ‘failing” an agreement, the employer can proceed by unilateral decision.

These include, without this list being exhaustive:

• the determination of the number and perimeter of the separate establishments for the CSE elections (Art. L 2313-2, L 2313-3 and L 2313-4)
• the possibility to establish electronic voting for CSE elections (Art. L 2314-26)
• establishing remote working (L 1222-9)
• the multi-weekly organization of working time (Art. L 3121-41 and L 3121-45)
• establishing on-call duties (Art. L 3121-11)
• the procedure to take the solidarity day (Art. L3133-11 and L 3133-12)
• the determination of allowances when business travel time exceeds normal travel time between the domicile and the usual place of employment (Art. L 3121-4)
• determining non-working holidays (Art. L 3133-1 and L 3133-2)

Do the expressions of the French Labor Code "in the absence” or “failing” mean that negotiations are a necessary prerequisite to adopting a unilateral decision or can the employer on the contrary adopt a unilateral decision directly?

1. A principle of subsidiarity recognized by the French Supreme Court

The French Supreme Court ruled on electoral law disputes, whether with respect to the determination of the separate establishments (Cass soc April 17, 2019 No. 18-22.948) or establishing electronic voting (Cass. Soc January 13, 2021 No. 19-23.533), that the employer can adopt a unilateral decision only after a loyal attempt at negotiation.

Although in line with the employment law trend encouraging a negotiation standard, these decisions sometimes go beyond the French Labor Code’s requirements, that may, in certain cases, expressly require that the collective agreement be preceded by serious and loyal negotiations (Art. L 3122-21 of the French Labor Code on establishing night work).

2. Towards a generalization of the preliminary obligation to negotiate?

In its explanatory note on the decision of January 13, 2021, the French Supreme Court specified that the expression “failing” should be understood as a subsidiarity and not simply as an alternative.

Therefore, the generality of this expression suggests that this solution could be duplicated on all the themes mentioned above. It could even be applicable when setting up a job protection plan insofar as Article L 1233-4 also uses the expression “failing” to provide for the possibility, in the absence of agreement on the job protection plan, to establish a unilateral document.

However it should be noted that the French Supreme Court did not wish to open wide the doors of negotiation: in its decision of January 19, 2021, it limited the preliminary obligation to negotiate to trade union negotiations alone and refused to extend the principle, in the absence of trade union delegates, to negotiations with the CSE members.

3. Consequences of a generalization of the prevalence of negotiation

If the legitimacy of a decision taken unilaterally by the employer is challenged, the employer will have to provide evidence that it seriously and loyally entered into negotiations: to appreciate its good faith, the judge may refer to its definition given in Article L 3122-21 on night work that requires that the employer has:

• convened to the negotiation the representative trade union organizations in the company and scheduled the location and timetable of the meetings
• communicate the information necessary enabling them to negotiate with full knowledge of the facts
• answered any proposal of the trade union organizations

The principle of supremacy of preliminary negotiation (in the presence of trade union delegates) must not be interpreted as the end of the employer’s power to decide unilaterally. The requirement of loyalty in starting the negotiations is not the same as an obligation to conclude an agreement so that the employer that fulfills its obligations to ensure loyal negotiations, notion interpreted in a relatively little binding manner, will regain its entire freedom.