CSR : the rose and its thorn (3)
Jacques Perotto and Maxime Hermes
The involvement of the Works council on environmental matters: new constraints or additional prospects?
In consideration of the generalized raising of awareness on environmental matters, it becomes inconceivable for a company to ignore this topic, in the framework of its activities but also in its relations with the employees and their representatives.
In France, since 2022, this involvement is mandatory through staff representatives (when they exist within the company): employers (with 50 employees or more) must present information on the environmental impact of their projects and activities to the CSE (Works council).
The choice of hard law on such a topic is not neutral, as these new obligations pile up with the other usual – dense - topics to be presented to the staff representatives (economic and strategic rationale of a project, impacts on the work conditions, health and safety implications…)
But the main benefit is probably to be found in the enhanced visibility it brings to environmental issues within companies.
How is the CSE involved?
The new requirements don’t mean new processes in terms of CSE information, but extend to existing environment matters already prerogatives of the CSE:
- Training for the CSE members will include topics on environment.
- Information about environmental aspects of the company’s activities is to be added to the permanent database accessible to the CSE members. This information includes the general policy of the company on environment matters, the sustainable use of resources and waste management and in some cases the identification of the company’s scope 1 emissions and carbon footprint.
- This database is used as a basis for the three regular CSE consultations (strategic orientations, financial and economic situation, social and work conditions), which now include the environmental impact of the company’s activity.
- The CSE is also consulted on the environmental impact of a specific project, before any implementation of the said project.
- The external expert that the CSE may appoint under some circumstances, is now allowed to access corporate information related to environment.
New points of attention?
As wide as the CSE attributions may appear, the consultation process can usually be managed quite smoothly, as the consultation period is well-defined and the CSE’s opinion is not binding.
The CSE may express its point of view and suggest changes, but may not oblige the employer to modify the project.
But difficulties may arise when the employer doesn’t include the environmental aspects in the provided information or holds back major information. In such cases, the CSE may obtain a suspension of the project as long as the proper information is not made available.
Some attempts to block or cancel restructuration projects have already happened. Even if there is no stable case law on this topic, some courts have already ruled that a consultation on a redundancy plan which did not include the environmental consequences of the restructuration may not lead to the cancellation of the plan.
If confirmed, it means that the main risk of ignoring environmental issues during restructuration would be to delay the process (while waiting for the company to complete the information), but not jeopardize it.
Most certainly an issue to watch closely!
What changes of culture are to be anticipated?
For the first time, the CSE members are indeed required to, not look only inside the company, but also to its impact outside, which is surely a game changer, and could lead in some cases to a change of culture in several ways:
- Raising of awareness on such topics for employees and their representatives, and internal evolution through social dialogue and negotiation.
- Transparency and accuracy of the data on the environmental impact of activities transmitted by the company: if staff representatives can fulfill their new role, they will be able to challenge the decisions and communication of the company on such topics.
Maybe, together with the extension of reporting obligations with the recent CSRD Directive, an efficient way to fight greenwashing and purpose washing?
Jacques Perotto, Partner and Maxime Hermes, Associate