Employment law
Unions and staff delegates: two institutions, two regimes, two common mistakes
Two letters land on the same desk on the same morning. The first comes from the union committee and asks for a meeting. The second is signed by the staff delegates and sets out eight claims about shift bonuses. The words look alike, the signatories pass each other in the corridors, and the temptation is to answer once. That is a mistake: these two institutions share neither origin, nor mandate, nor powers.
The companies named in this article are fictitious and used only as examples.
1. First difference: who has to set them up
Staff delegates are elected in every establishment with more than ten workers (Labour Code, article L.265). The verb admits no alternative. It is the head of the establishment or his representative who is responsible for organising and properly conducting the elections, who chairs the polling station and who sends the minutes to the labour inspector (article L.268).
The union committee, by contrast, may be formed by any representative union in every undertaking or establishment usually employing 11 workers (Labour Code, article L.258). The initiative belongs to the workers and their union. You organise nothing: you are notified of the members' names as soon as they are designated.
The corollary is clear, and it carries weight. You can be penalised for failing to hold staff delegate elections: XOF 10,000 to 18,000, and XOF 100,000 for a repeat offence (article L.330). You can never be penalised for the absence of a union committee in your company.
Electing staff delegates is your obligation. Forming the union committee is the workers' right. Never confuse the two.
2. Second difference: the term of office, and where the mistake comes from
This is the point on which almost every document in circulation goes wrong, and the source of the error can be identified.
Since Law No. 2017-021 of 12 June 2017, the term of office of staff delegates is three years, and they may be re-elected (Labour Code, article L.265). One year was the term under the previous regime.
That one-year term in fact survives in the implementing text, which has not been updated: Order No. 96-1566 of 7 October 1996 still provides, in article A.267.8, that « the election of staff delegates takes place each year in the month preceding the normal expiry of the delegates' functions ».
The rule to remember combines the two texts rather than setting them against each other. The law, as the higher norm, fixes the term at three years. The order fixes the timing of the ballot: in the month preceding the normal expiry of the functions. So you hold elections every three years, in the month before the term runs out.
And the union delegate?
No text fixes his term of office. The Code requires only that he has belonged to the undertaking for one year (Labour Code, article L.261), and the chapter of the order devoted to union committees contains a single article, article A.260, which deals only with the number of delegates.
Stating that a union delegate is appointed for three renewable years therefore has no basis. It is an appealing symmetry, but an invented one. His designation and replacement are matters for the union, which notifies you of the names.
For the record, staff representatives on the health and safety committee are elected every three years on the same terms as staff delegates (Decree No. 96-178, article D.282-2).
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3. Third difference: civil personality, and who holds it
Trade unions enjoy civil personality. They have the right to sue and to acquire, without authorisation and whether free of charge or for consideration, movable and immovable property (Labour Code, article L.240). Civil personality is a body's capacity to act in its own name: to own, to sign, to sue and be sued.
It belongs to the union. It does not belong to the union delegate, who represents the union before the head of the undertaking (article L.261) but does not act on his own account. Writing that « union delegates hold civil personality » reverses the relationship: the union holds it, and the delegate represents the union.
Nor does the Code endow the union committee with a personality of its own. It represents the professional interests of its members under the provisions applicable to trade unions (article L.259): it is the union's emanation inside the company, not a separate legal person.
As for the staff delegate, he has neither civil personality nor capacity to act on the workforce's behalf. His task is to present claims, to refer matters to the labour inspector, to see that health, safety and social welfare requirements are applied, and to pass on suggestions (Labour Code, article L.278). Workers moreover keep the right to present their own claims themselves (article L.279).
The consequence is practical. In collective litigation, your opponent on the writ is the union, not the delegate. It is the union that may exercise before all courts the rights of a civil party, for any act causing direct or indirect harm to the collective interest of the occupation it represents (article L.241).
4. Fourth difference: how far their field of action reaches
The staff delegate is confined to the establishment and to the labour inspectorate. The union has no company boundary.
- Lawfully constituted unions may freely act together and form a federation in whatever form (article L.250); those federations enjoy all the rights conferred on unions (article L.251).
- The union negotiates and signs collective agreements (article L.70), and takes part in the joint commission convened by the Minister for Labour (article L.78).
- It signs company or establishment agreements, alongside the staff delegates (article L.88).
- The most representative unions designate the lay members of the labour courts (article L.199) and the workers' representatives on the Higher Labour Council (article L.283).
Inside the company the union committee is nonetheless consulted on specific matters, and often before the staff delegates.
- Before any technical or economic lay-off, the employer must seek the opinion of the staff delegates where they exist, or of the union committee (article L.35).
- The additional criteria for the order of economic dismissals are settled between the employer and the union committee, failing which the staff delegates (article L.48).
- The employer must consult the union committee, or failing that the staff delegates, fifteen days before an economic dismissal, on the list of volunteers for departure (Order No. 2024-4363 of 27 December 2024, new article A.48.1).
- Before any outsourcing, the company must consult the union committee or, failing that, the staff delegates, and send the minutes to the labour inspector (Decree No. 96-178, new article D.313-7-1).
Note the order: on these four matters the union committee comes first and the staff delegates second. Consulting the delegates alone where a union committee exists is a procedural irregularity.
5. The table to keep at hand
All the differences together, with their basis.
| Criterion | Staff delegate | Union delegate |
|---|---|---|
| Setting up | Compulsory election organised by the employer (articles L.265 and L.268) | Designation by the representative union, notified to the employer (article L.258) |
| Trigger threshold | More than ten workers (article L.265) | Eleven usual employees (article L.258) |
| Number | 1 to 9 full delegates by headcount, and as many substitutes (article L.266) | 5 to 26 by headcount (article L.260 and Order No. 96-1566, article A.260) |
| Term of office | Three years, renewable (article L.265) | No duration fixed by any text |
| Conditions to be met | 21 years of age, nationality, ability to express oneself in French, 12 months' unbroken service (article A.267.6) | One year's presence in the undertaking (article L.261) |
| Hours credit | 15 hours a month, paid as working time (article L.271) | The same time (article L.263) |
| Protection against dismissal | Prior authorisation of the labour inspector (article L.277) | The same (article L.263) |
| Civil personality | No | No: it belongs to the union (article L.240) |
| Field of action | The establishment and the labour inspectorate (article L.278) | The company, and beyond it through the union and its federations (articles L.250 and L.251) |
6. What they have in common
The differences should not hide a shared base, which many employers grant only halfway.
- Holding both offices is expressly allowed. The functions of union delegate may be combined with those of staff delegate (article L.261). One person may therefore wear both hats, without the hours credits automatically adding up: that is a point to settle in writing.
- The same protection against dismissal. A union delegate has the same time and the same protection as granted by article L.277 (article L.263), that is the labour inspector's prior authorisation.
- The same leave of absence for statutory congresses and conferences of trade unions, paid and not deducted from annual leave (articles L.254 and L.264).
- A room. The employer makes available to the staff delegates the room and furniture needed to carry out their task and to meet (article L.272), and a room for the union delegates' monthly meeting, held outside working hours (article L.262).
- Posting. Staff delegates post at the entrance doors of the workplace and on spaces necessarily provided for union communications (article L.273); the union committee enjoys freedom to post and distribute communications of a professional nature (article L.262).
Finally, the source note was right on one point: the two institutions can perfectly well coexist in the same company, and their functions can be combined by one and the same person.
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7. What the confusion costs
The penalties do not target the same acts, and the heaviest is not a fine.
| Conduct | Penalty | Text |
|---|---|---|
| Failing to hold the election of staff delegates | XOF 10,000 to 18,000, and XOF 100,000 for a repeat offence | Article L.330 |
| Interfering or attempting to interfere with the free designation of staff delegates or the proper exercise of their functions | XOF 100,000 to 500,000 and one month to one year's imprisonment; on a repeat offence imprisonment is always imposed | Article L.331 |
| Taking union membership or activity into account in a decision on hiring, advancement, pay or discipline | XOF 50,000 to 250,000 and 1 to 4 months' imprisonment; repeat offence: XOF 500,000 to 1,000,000 and eight months | Article L.329, penalising article L.257 |
| Dismissing a delegate without the labour inspector's authorisation | Dismissal null and void by operation of law, delegate restored to his rights and reinstated in the undertaking | Labour Code, article L.277 |
The last line is the costliest, and it is not a question of amount. A fine can be provisioned; a reinstatement has to be lived with. The worker returns to the headcount, to his post, with his mandate.
Example. Djoliba Ciment, 320 employees, has held no elections for five years and has just dismissed a union delegate without referring the matter to the labour inspector.
- No elections held: up to XOF 18,000, and XOF 100,000 as a repeat offence
- Interference with the proper exercise of functions: up to XOF 500,000 and one year's imprisonment
- Dismissal of the delegate: null and void, with restoration of rights and reinstatement
- At 320 employees: the 251 to 500 band gives 7 full staff delegates and 7 substitutes, and 21 union delegates
For the detail of the scale, see the number of union delegates; for the protection regime and the procedure before the inspector, see protection of the delegate; on the institution itself, see the trade union.
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Key takeaways in 6 points
- Hold the staff delegate elections: that is your obligation. Organise nothing for the union committee: that is the workers' right.
- Remember the right duration: three years for staff delegates since 2017, and no duration at all fixed for the union delegate.
- Attribute civil personality to the union, never to the delegate or to the union committee.
- Consult the union committee first on technical lay-off, the order of economic dismissals and outsourcing.
- Grant the common base: both offices may be held together, same protection, same paid leave for congresses, a room and posting spaces.
- Never dismiss a delegate without the labour inspector's prior authorisation: the penalty is not a fine, it is reinstatement.