” At the time of writing these lines, the challenge formulated by the CSE has just been examined by the Court of Versailles. The public rapporteur asked for the rejection of all the challenges of the CSE “, we wrote at the conclusion of our investigation published last December, a few days before a judgment which finally followed the recommendations of the public rapporteur. But the employee members of the CSE had not said their last word and appealed the decision.
A unilateral modification of the agreement
A new public rapporteur has thus taken up the case and his conclusions this time have been favorable to their requests. A victorious appeal about which Maître Bouzaida, lawyer at the Paris Bar who accompanied the employees before the court, kindly shared his analysis with us: “ The new public rapporteur agreed with us on appeal on one point, which the Versailles Administrative Court of Appeal upheld. To make a PSE, the law leaves two possibilities to the employer “, he comments, before continuing: “ Either do it alone: he then develops the document unilaterally; or he has the option of doing so by agreement with the trade unions. It turns out that there was a collective agreement that was found, in extremis. And in these cases, there is always a form of blackmail between signing what is negotiated or not signing and receiving less. The problem is that the labor administration reported to the employer that this agreement lacked measures to protect the health of employees who had to stay a little longer for the purposes of the closure. Instead of discussing it with the trade unions that had signed the agreement, the company presented a note with some measures to the Social and Economic Committee. Now – and this is a principle in law – what is established by agreement can only be modified by agreement. So that’s what got sanctioned: once you’ve made a deal, you can’t then complete it alone. The management defended itself by arguing that completing an agreement is not modifying it. While this is obviously the case, the public rapporteur has also taken up this reformulation by saying that to complete a document is to modify it “.
He pursues : ” We can consider that this is only a point of procedure, but it is the very object of the appeal before the administrative judge. He is not there to judge the economic reason, the law prevents him from doing so. It is only there to judge whether the administration has done its job well during the CSE consultation procedure and afterwards to validate or not the employer’s project. And he ruled that the administration should not have validated, because by modifying a collective agreement alone, the employer committed a fault. This invalidation of the PSE thus opens the way to possible additional compensation, of a minimum of 6 months’ salary according to a provision of the Labor Code, for the former employees who will take the decision to contest the economic reason for the plan before the Conseil de prud’hommes, the only body able to give them reason on this point. However, this is not necessarily guaranteed, as Master Bouzaida points out: ” For all employees who are going to take action before the Labor Court to challenge their dismissal, the decision of the Administrative Court of Appeal that we have obtained therefore allows – provided that it is final – to be assured of obtaining a minimum compensation of 6 months’ salary, while the so-called Macron scale, which the judges could apply if they consider that the dismissals are without real and serious cause, provides as a minimum compensation equal to three months’ salary. »
That is the big hypocrisy of this legal system resulting from a law passed in 2013: we can sanction the administration and, behind it, society, for not having done things correctly, but instead of drawing all the consequences and to prevent the implementation of the reorganization – and here in this case the closure – in the meantime, we let it happen.
However, no reinstatement of dismissed employees is possible at this stage, as Master Bouzaida explains to us again: “ That is the big hypocrisy of this legal system resulting from a law passed in 2013: we can sanction the administration and, behind it, society, for not having done things correctly, but instead of drawing all the consequences and to prevent the implementation of the reorganization – and here in this case the closure – in the meantime, we let it happen. Concretely, as soon as the administration validated the plan, in the days that followed, the company hastened to send the dismissal letters. In other words, we fire people, a few months later there comes a court decision like the one we obtained, but the law then says that we are not going to force society to reinstate everyone, so we just provides compensation. »
Pay, rather than maintain jobs
A situation that had already occurred during the first PSE, in 2019, which led, at the time, to the dismissal of 134 employees: “ In 2019, we had already obtained the cancellation of the decision which allowed the application of the previous PSE. Here again, as the management had immediately sent the dismissal letters, the dismissed people could not find their jobs, while once again, we had a court decision which sanctioned the behavior of the employer “recalls Master Bouzaida, before giving us his analysis of this bias:” If we say that we shouldn’t have been able to dismiss people because we are canceling the decision that allowed you to do so, by pursuing the reasoning to the end, that means that we should reinstate them. However, the legislator of 2013 did not dare to draw all the consequences of this situation, in particular under pressure from employers. And once again, we prefer to pay than to maintain jobs. »
Contacted, the European management of Activision Blizzard did not wish to comment on this decision of the Administrative Court of Appeal of Versailles.
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