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the Council of State inflicts a setback on the government

It’s a “Victory” and an “Great satisfaction” for trade union organizations that challenged a provision made by the executive at the start of the health crisis. On Wednesday 19 May, seized by Force Ouvrière (FO), Solidaires and the Union of Lawyers of France (SAF), the Council of State annulled article 9 of the ordinance of April 22, 2020 and its implementing decree, dated May 2 of the same year. They made it possible to temporarily reduce – in this case for four months – the consultation and information period for elected officials who sit on the Social and Economic Committee (CSE) of a company.

Employee representatives had only eight days – as opposed to a month usually – to comment on a decision by the employer. These provisional rules also offered less time for an expert to deliver his opinion on a given subject, at the request of the CSE. Heavy decisions such as a social plan or a collective performance agreement were excluded. Intended to be limited in time, this provision is no longer in force. For those in power, it was about allowing companies to face the consequences of the coronavirus more quickly.

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The Council of State did not express itself on the merits or not of shortening these deadlines but on the conditions under which these measures were taken. They were made under the emergency law of March 23, 2020 to deal with the Covid-19 epidemic, which authorized the executive to legislate by ordinance in various areas that normally fall under the law. However, notes the Council of State, “None of these provisions empowered the government to reduce the timeframes for informing and consulting [CSE], nor the deadlines applicable to the conduct of the expert appraisals decided within the framework of these procedures by the committees ”. The incriminated provisions “Ignore the scope of the authorization given” to the executive, considers the highest administrative court.

“Violation of the separation of powers”

According to the secretary general of FO, Yves Veyrier, “This shows that the public authorities would do better to listen to what the unions say and not to surf on a display of social dialogue”. “Social dialogue is much more effective than force-entry”, he continues. “It was deeply scandalous that the government took advantage of the state of emergency and the impossibility for the social movement to react to reduce our rights”, also considers Elie Lambert, national secretary of Solidaires.

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