How to calculate the workforce of your CSE?

21 mai 2020

How does the CSE work?

As we said on our article explaining what the CSE is , in companies meeting the threshold conditions laid down by law, there will no longer be employee representatives, Works Council or Committee of Health, Safety and Working Conditions from January 1, 2020.

The roles played by these employee representative bodies will now be assumed by the CSE, which will consist of the employer and a delegation elected by the staff, the size of which is determined by the size of the company.

This delegation is elected by all employees aged over 16 who have more than 3 months of seniority in the company and have not been subject to any prohibition, forfeiture or incapacity relating to their civil rights.

It includes an equal number of titular representatives and alternates who attend meetings in the absence of the titular members. They benefit from a 4-year mandate, renewable consecutively 2 times (in other words, 3 consecutive mandates at most).

At the end of the mandate, the proceeding can only be renewed if the staffing threshold as defined by law is maintained. If the workforce of the company has fallen below the threshold in the meantime, it will be necessary to wait until the threshold is reached to organize new elections and set up a new board for another 4-year term.

When to calculate the CSE workforce in your company?

The calculation of the workforce is done first in order to assess the need for a CSE in a company . This need is generally raised in the case of VSEs and SMEs in which the number of employees changes very often.

When the need for a CSE within a company is established, the organization of employee representative elections requires a calculation of the workforce.

In this case, the calculation will make it possible to determine on the one hand the number of staff representatives who will have to be elected, and on the other hand to know for each of them, the number of hours of delegation to be allocated.

According to regulatory provisions, the establishment of a CSE in a company becomes compulsory as soon as it has for 12 consecutive months, a workforce of at least 11 employees. As soon as this number increases to 50 over 12 consecutive months, the powers of the authority increase. However, employee representatives will not exercise these new powers until 12 months after the date on which the threshold of 50 employees has been reached and if this threshold has been maintained during this time.

Who should take the initiative in calculating a company's CSE workforce?

The organization of elections for the establishment of a CSE must be the initiative of the employer. However, if the latter fails to fulfill this responsibility, the law authorizes trade unions and employees of the company to seize it and to request the organization of employee representative elections, even if a works council is set up.

As soon as it receives the said request, the employer has 30 days to initiate the procedure for organizing the elections, at the risk of falling under the law. In all cases, the law protects the first employee who seized the employer against dismissal, provided that his action has been confirmed by a trade union organization.

Who are the employees to take into account?

According to the principle of calculation, all employees are included in the workforce, regardless of their seniority and whatever working time they work in the company. Thus, the calculation will take into account:

Employees with a permanent contract;
Employees holding a fixed-term contract;
Employees working part-time, regardless of the nature of their contract;
Teleworkers;
Elected staff or members of the works council or other IORPs who have been dismissed without authorization and who, requesting their reinstatement, have not yet obtained it;
Employees absent due to illness, work accident, training leave, etc.
Employees made available to the company and who have worked there for at least 12 months;
Part-time employees.

It should also be mentioned that employees on temporary contracts must also be taken into account when calculating the CSE workforce. However, by the very nature of their contract, they are not eligible. They are only allowed to elect. Some others are also excluded from the calculation.

Who should be excluded from the CSE headcount calculation?

Even if they are all present in the company, certain employees should not be considered in the calculation of the workforce. It's about :

Corporate officers;
Employees holding a fixed-term contract or made available and who replace another employee within the framework of parental education, maternity, adoption leave, etc. ;
Employees made available by an outside company, but who do not work in the premises of the user company or who have worked there for less than 12 months;
Employees working part-time in several companies and already being elected as employee representatives in one of these companies;
Employees on professionalization contracts;
Apprentices;
Trainees.

Let us also remember that even if they had belonged to the works council, the spouse, the partner, the PACS partner, a brother, a sister, an ascendant or a descendant of the employer and employees under the age of 18 cannot be eligible. That said, here's how the math is done.

How is the CSE workforce calculated?

Before going into the hard part, let's see what are the principles that govern these calculations.

The principle of the calculation of staff

To calculate the workforce, we always place ourselves at the end of the month to make things easier with contracts where account must be taken of the time spent on the month.

Thus, for an election to be held on August 15, 2019 for example, it will be necessary to be based on the numbers from July 1, 2018 to June 30, 2019, i.e. the twelve months preceding the month during which the calculation of the numbers is carried out.

In addition, the calculation is always made for each of these twelve months and in full-time equivalent (FTE). In other words, you will have to perform 12 calculations. If on one of the months, the threshold of 11 employees is not reached, the counter must be reset. It must be maintained over 12 consecutive months for the CSE to be implemented.

For part-time employees, a percentage is applied to their FTE to determine their working time. More concretely, this is how it all happens.

The details of the CSE staff calculation

Not all employees are taken into account in the calculation of the CSE workforce. And for those who are taken into account, they are not taken into account in the same way.

Those who are fully taken into account in the workforce of the company:

Employees on permanent contracts who work full time, including those who are absent due to illness or those whose contracts have been suspended for maternity or parental leave are fully taken into account in the calculations.

By way of illustration, an employee on a permanent contract who arrived in the company on June 20 will be counted as 1 FTE for the calculation of the workforce for the month of June.

The same will be done for homeworkers and employees posted from an outside company if it is the user company which has concluded the contract.

Those who are taken into account according to their working time over the previous 12 months

Whether they hold a fixed-term or a permanent contract, part-time employees, including those who are absent due to illness or those whose contracts have been suspended for maternity or parental leave are taken into account in in proportion to their working time. We will therefore divide the number of months of work done by 12 and the number of hours of weekly work by 35 (35 representing the legal number of hours of weekly work). The same rule counts for homeworkers.

For example, a part-time employee holding a fixed-term contract and who worked for 3 months for the company during the twelve months preceding that of the calculation will be counted as 3/12, ie 0.25 FTE. If he only worked 25 hours per week during these 3 months, his working time will be 25/35 x 0.25 FTE or 0.178 FTE.

Employees made available by an outside company are also counted in proportion to their working time. However, they must be present on the premises of the company and have worked there for at least 12 months.

By way of illustration, a designer made available to the company in March 2019 will only be taken into account in calculating the CSE workforce for the 12th month following the month of his arrival, i.e. in April 2020, and on the condition that he worked in the company during these 12 months.

In addition, since January 1, 2019, employees belonging to the following categories are also taken into account in proportion to their attendance time and contractual working time:

Employees with a single integration contract;
Employees holding an employment initiative contract (CUI-CIE);
Employees holding a job support contract (CUI-CIE).

As soon as these FTEs are calculated per month and for 12 consecutive months, they are compared to the threshold for setting up the CSE which is 11. The instance will be set up only if for each month, an FTE greater than 11 is obtained. If the condition is not met, the company must operate without a works council and without any other IORP.