Ordinance n ° 2020-595 of May 20th, 2020 (1) modifies and supplements the ordinance of March 25, 2020 "adapting the rules applicable to the courts of the judicial system ruling in non-criminal matters and to the contracts of co-ownership trustees "(2).
This latest regulatory text introduces a specifically dedicated chapter "Provisions relating to certain disputes" (3).
Some of these provisions modify the procedure for industrial tribunal (conseil de prud’hommes) disputes.
1) Return to the Judgment Office (bureau de jugement)
1.1) The return to the Judgment Office (bureau de jugement) of cases that have not been returned to BCO 3 months after the referral
Article 8 of the Ordinance of May 20th, 2020 deals with the case of referral to the Industrial Court. Under certain conditions, the case could be “referred to the appropriate adjudication office for the settlement of the case” directly. The reference would take place "on a date that the registry indicates to the parties by any means".
It might appear from this drafting that the initiative not to submit the case to the Office of Conciliation and Orientation (BCO), as provided for in the Labor Code, therefore belongs to the court seized.
As a reminder, the provisions of the Order of March 25th, 2020 that this order comes to modify apply "to the courts of the judicial order ruling in non-criminal matters during the period between March 12, 2020 and the expiration of a period of one month from the date of cessation of the state of health emergency declared under the conditions of article 4 of the law of March 23rd, 2020 [...] ”(4).
1.2) Direct referral to the Judgment Office (bureau de jugement) under conditions
1.2.1) The condition of the period of 3 months from the referral
Direct referral should only take place in certain circumstances. This concerns cases for which "three months after referral to the industrial tribunal, the hearing of the conciliation and guidance office did not take place".
1.2.2) The condition relating to the state of the case
This also includes cases for which "the minutes provided for in article R. 1454-10 of the labor code have not been drawn up". These minutes are those which are normally drawn up after the BCO has heard the parties and has '[endeavored] to reconcile them' (5).
They are therefore also cases in which "no decision on the basis of article R. 1454-14 of the same code has been taken". Among the decisions which may be taken on the basis of this article of the Labor Code include the order of "interim payments" or of "issue [...] of work certificate, pay slips [...]", by example (6).
1.2.3) The condition of the applicant's absence of opposition
Article 8 of the Order of May 20, 2020 provides that this referral takes place "in the absence of opposition from the applicant". It is therefore possible for requesting employees, through their Council, to refuse the direct referral of their file to the Judgment Office without going through the BCO.
1.3) Direct referral to the Judgment Office (bureau de jugement), an opportunity to go faster?
The advisability of such a measure appears for cases concerning which the chances of reconciling or concluding a transaction elsewhere are slim.
Also, the philosophy of this system can effectively consist of a desire to reduce the congestion of the labor courts.
And for good reason, practice teaches that from the referral to the Labor Court Council of Ile-de-France (Paris, Nanterre, Boulogne-Billancourt, etc.), it takes about seven months before obtain a hearing date before the BCO, and then again the same duration before obtaining a hearing date before the Judgment Office.
These provisions would therefore make it possible to plead directly before the Judgment Office, and at a shorter date than if the procedure had followed its usual course.
Already in normal times, the procedure for taking an act precisely involves this mechanism of direct hearing by the Judgment Office (7). However, if the text provides that a period of one month maximum must elapse between the referral and the hearing, we observe that the courts do not have the human and material means to respect such a period
Thus, will the courts have the means to make the provisions of this ordinance effective and to use it as soon as the three months have elapsed since the referral? Nothing is less sure.
Furthermore, if all the cases concerned are effectively transferred to the Judgment Office (burau de jugement), it is feared that the problem of overcrowding is only displaced, from the BCO to the Judgment Office.
2) Reception and transmission by the registry of procedural documents by electronic means
The Ordinance, still in its article 8, indicates that “the registry service agents assigned to a single reception service for litigants” can “ensure the reception by electronic means and the transmission by electronic means” of certain documents. In labor matters, this concerns:
• The requests " ;
• “Requests for the issue of a certified true copy, an extract and a certified true copy bearing the enforceable form”.
The last paragraph specifies that "in the case where it has been received by electronic means, the original document drawn up in paper form must be produced by its author before it is decided on his request.".
3) In the event of a split vote (départage)
Article 2 of the Ordinance of May 20th, 2020 also deals with the case of the division of votes in the Industrial Court, which requires the referral to the court.
In fact, in such a case, "the case is referred to a judge of the judicial court (tribunal judiciaire) in whose jurisdiction the seat of the industrial tribunal is located". Consequently, the judge "rules after having obtained by all means the opinion of the advisers present at the tiebreaking reference hearing".
Finally, "if, at the end of the period mentioned in article 1", that is to say between March 12th and June 23rd, 2020, "the judge did not hold the tiebreaker hearing", then " the case is remitted to the restricted panel presided over by this judge”.
 Ordonnance n° 2020-304 du 25 mars 2020 portant adaptation des règles applicables aux juridictions de l’ordre judiciaire statuant en matière non pénale et aux contrats de syndic de copropriété : https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755577&categorieLien=id
 Article 8 - Ordonnance n° 2020-595 du 20 mai 2020 modifiant l’ordonnance n° 2020-304 du 25 mars 2020 portant adaptation des règles applicables aux juridictions de l’ordre judiciaire statuant en matière non pénale et aux contrats de syndic de copropriété https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041897232&categorieLien=id
 Article 1 - Ordonnance n° 2020-304 du 25 mars 2020 portant adaptation des règles applicables aux juridictions de l’ordre judiciaire statuant en matière non pénale et aux contrats de syndic de copropriété : https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755577&categorieLien=id
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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