Does the use of partial operation require the advice of the ESC?

The Ministry of Labour responds favourably, stating that the company has 2 months from the request to consult the ESC and submit this notice to the administration.

https://travail-emploi.gouv.fr/IMG/pdf/covid19-dispositif-exceptionnel-activite-partielle.pdf

However, this new body, comprising the former EC, DP and CHSCT, must be set up in all companies crossing the 11-employee threshold. However, consultation in the context of the implementation of the partial activity, was imposed only on companies with a EC, i.e. companies with 50 employees.

The question of consultation is legitimate since the mere concept of ESC is included in the Communications of the Ministry of Labour.

BDO draws your attention to the fact that the drafting of Article R.5122-2 of the Labour Code, which provides for the requirement to consult the ESC before a request for partial activity, has been amended by the decree of March 25^th, 2020.

In its earlier drafting, the article sought to consult the ETC "under Article L. 2312-17";  that is, with respect to the REC's remit in companies with 50 or more employees.

The article now states that the application "is accompanied by the notice previously given by the Economic and Social Committee, if the company is endowed with it.

There is no longer any specific reference to the remit of the ESC in structures with 50 or more employees. As a result, the ESC must now be consulted on the request for partial activity, including in companies with a workforce of less than 50.

 

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