The “climate and resilience” law of 22 August 2021 has enriched the prerogative of the CSE (works council) by including environmental concerns in the CSE’s remit. This law, which was passed this summer, has been the subject of little publicity. However, it entails new obligations for the companies concerned. The aim of the climate law is to enable the CSE to carry out an environmental audit of the company’s activities.
Thus, since 25 August 2021, it has been compulsory, in companies with at least 50 employees, to inform and even consult the CSE on the environmental consequences of the company’s activity.
Here is an overview of the consequences of integrating environmental issues into industrial relations.
The extension of the competences of the CSE to the environment
Before the Climate Act of 22 August 2021, the CSE already had environmental competences, but these were very specific (for example, the possibility of holding an extraordinary meeting in the event of serious events linked to the company’s activity that have harmed the environment, or the right of the CSE representative to alert the company in the event of a serious risk to the environment).
The general remit of the CSE provided for in Article L. 2312-8 I of the Labour Code is now extended. The new Article L. 2312-8 of the Labour Code states that “the social and economic committee’s mission is to ensure that employees express their views collectively so that their interests are taken into account on a permanent basis in decisions relating to the management and economic and financial development of the company, the organisation of work, vocational training and production techniques, particularly with regard to the environmental consequences of these decisions”.
Article L. 2312-8 II of the Labour Code also broadens the scope of ad hoc consultations of the CSE. The CSE must now be informed and consulted on the environmental consequences of issues concerning the organisation, management and general running of the company.
In addition, the CSE must be informed (and not consulted) on the environmental consequences of the company’s activity, during the three recurrent consultations provided for in Article L. 2312-17 of the Labour Code (strategic orientations, economic and financial situation, social policy and working conditions).
The new resources of the CSE
In order to have the capacity to understand in an informed way the environmental consequences of the various measures taken by companies, the legislator has granted new tools to the CSE:
– Modification of the BDES
In companies with more than 50 employees, the ESDB must be completed. It is now called “economic, social and environmental data base” (“BDESE”). The BDESE must now include a new category entitled “environmental consequences of the company’s activity” (Article L. 2312-36, 10° of the Labour Code). A decree will soon specify the elements that must be included in this new item.
– Changes to training leave
Training leave will now be able to cover subjects related to the management of the environmental consequences of the activity of companies.
– Changes to the mission of the CSE’s chartered accountant
The prerogatives of the chartered accountant, which the CSE may call upon in the context of its three recurrent consultations, are now extended to environmental issues.
Practical consequences still unclear
However, this law contains certain grey areas that make it difficult to analyse the practical implications of these changes.
First of all, the law does not provide a precise definition of what is meant by “environmental consequences”. In the absence of a precise legal framework, employers will therefore have to consult the CSE on environmental issues on a wide range of decisions. It is therefore to be feared that the addition of environmental consequences to the prerogatives of the CSE will lead to additional burdens for employers in the context of consultations.
There is also a lack of visibility on how companies will have to act within the framework of this new consultation theme: at what level will companies have to consult on the environmental consequences, will a specific consultation have to take place to integrate the environmental consequences of a project, what will be the degree of information to be provided?.
Finally, these new environmental prerogatives of the CSE will enable it to be better informed on environmental issues. In practice, this information could lead to greater recourse by the CSE to the right to alert on public health and environmental issues.