Decree No. 2020-325 of March 25, 2020 relating to partial activity allows the employer to obtain the opinion of the CSE after its request for partial activity when its request is based on exceptional circumstances (case of Covid-19).
It is specified that the opinion of the CSE must be sent to the Direccte within a maximum period of two months from the date of said request.
This expected derogation from the usual consultation rules of the CSE was accompanied by another, less discussed modification, which could nevertheless have significant consequences for companies with fewer than 50 employees.
Article 1 of the said decree has indeed made the following amendment to paragraph 6 of article R. 5122-2 of the Labour Code relating to the opinion of the CSE which must accompany the application for partial activity:
« The application for partial activity is accompanied by the opinion previously issued by the social and economic committee, if the company has one. »
To measure the scope of this change, it is necessary to know that paragraph 6 of article R. 5122-2 of the Labour Code was previously written in such a way that it seemed to target only companies with more than 50 employees, which allowed it to be considered that only these were concerned by the obligation to seek the opinion of the CSE.
This paragraph was indeed worded as follows: " it [the application for partial activity] is accompanied by the prior opinion of the social and economic committee in application of article L. 2312-1 ." However, this latter article concerns companies with at least 50 employees.
The decree of March 25, 2020 thus appears to extend the obligation to consult the CSE to companies with fewer than 50 employees.
This situation can pose a particular difficulty for companies that have not set up the CSE even though they were legally obligated to do so.
The question arises of how the Direccte will handle applications for partial activity from companies that have not set up such a CSE or that do not provide proof of failure to do so.
It is not out of the question that the Direccte may refuse in such a situation or that it may withdraw an authorization decision that it had granted.
