Created on February 22, 1945, the works council had the primary objective ofinvolving workers in economic decisions and company management”. The extent of the works council’s powers has thus beenthe organization, management and general operation of the company”.

Long unchanged, the mission of the Works Council was transformed for the first time in 2017 with the merger of all the French staff representative bodies into one: the Social and Economic Committee (hereinafter CSE), following the said “Macron” decreed, resulting in the Works Council taking over the health and safety aspects initially entrusted to the Health and Safety Committee (CHSCT).

Following this first change, environmental issues had gradually started to make their way into the Labor Code, for example via sustainable mobility issues or via the right for the SEC to raise an environmental alert, but August 23, 2021 marks a a new step for the SEC: it will now have to be consulted on the environmental consequences of all company management decisions.

Indeed, the “Climate and resilienceThe law of August 22, 2021, quietly passed by the French Parliament during the summer of 2021, granted new powers to the SEC and the unions in order to involve them in the fight against global warming.

Taking up some of the proposals of the Citizens’ Climate Convention, this new law gives the SEC new and relatively broad prerogatives, the scope of which remains to be defined according to the use that the SECs and the unions will make of them.

New powers and new resources

Article L. 2312-8 of the Labor Code, which defines the powers of the SEC in companies with more than 50 employees, now specifies that the mission of the SEC is to “ensure the collective expression of employees so that their interests are taken into account on a permanent basis in [company] decisions, particularly with regard to the environmental consequences of these decisions.”

In accordance with these new powers, the SEC will now be “informed of the environmental consequences of the company’s activity» during his three regular consultations (Article L. 2312-17 of the Labor Code).

With respect to consultations on specific projects, the SEC’s consultation will now also cover “the environmental consequences of measures relating to the organization, management and general operation of the company” (article L. 2312-8 of the labor code).

In the absence of further details, a broad assessment of the “environmental consequenceswill lead employers to consult the SEC on the environmental aspects of many decisions affecting the general operation of the company: implementation of telework, relocation, distribution of sales territories, new technologies, replacement of company vehicles, restoration of company, etc.

In order to carry out these new missions, the new law has provided the SEC with several new tools:

– The Economic and Social Database (BDE) became the Economic, Social and Environmental Database (BDSE) and must be supplemented by a new element: “environmental consequences of the company’s activity” (Article L. 2312-36, 10°, of the labor code). A decree will soon specify the elements that must appear in this new tab;

– The scope of the opinion that can be given to the SEC by an expert has been extended: the mission of the accountant can now include the environmental elements necessary for the consultation of the SEC (Articles L. 2315-87-1, L. 2315-89 and L. 2315-91-1 of the labor code);

– The initial training of elected officials has been extended: the economic training of new CEP elected officials can now cover the environmental consequences of the company’s activity (Article L. 2315-63 of the Labor Code).

Unclear impact for employers at this stage

At first sight, this new law does not seem to involve major strategic considerations for employers.

Indeed, environmental issues have historically not been the responsibility of employee representatives or trade unions.

Even if certain competences had already been entrusted to them in recent years, the role of employee representative bodies and trade unions in this area has until now been quite limited and elected officials therefore have no specific knowledge of these subjects.

However, the trade union confederations had already taken up environmental issues about ten years ago and demanded the involvement of staff representative bodies in the fight against climate change.

Thus, some companies had already set up “environment” or “eco-citizenship” commissions at the initiative of trade unions, within the framework of collective bargaining, in the absence of any related legal provision.

Therefore, it is not excluded that the SEC seize this new opportunity and make environmental issues a new battlefield, particularly in the context of sensitive operations, such as restructuring projects, adding a new constraint for employers when the preparation of the already heavy consultation of the SEC. .

This is all the more true since the Labor Administration has already taken this new law into account and now verifies that the opinions of the SEC include an environmental component when it examines applications for approval and validation of Social Plans.

It should also be noted that the accounting and consulting firms that support the SEC have already adapted and now include this new environmental segment in their offers.

In the context of a reorganization project, and in particular in the context of social plans, it will therefore be important to be particularly vigilant and to provide the SEC with detailed information on the environmental impact of the project, which can be quite significant. , so that the SEC can issue an informed opinion. We are thinking in particular of the environmental consequences of the following elements: automation, transfer of production abroad, potential loss of jobs, geographical transfer of certain employees to a new site, the fate of equipment and production lines in the event of closure.

In the absence of case law on these new texts, it is currently difficult to establish the degree of precision expected during a consultation on these matters. The decree which will specify the information to be provided in the “BDESE” database, which is expected to be published shortly, should give a first indication of the level of precision to be provided on the various points mentioned above, until We know a little more about the consequences of this reform, the contours of which will no doubt be defined by the SEC and case law in the years to come.

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