In recent years, labour law has undergone a series of major reforms. In substance, these are characterised by the objectives pursued by the legislator. In particular, the latter wished to disrupt the sources of labour law by promoting collective company agreements in their relations with branch agreements and the employment contract. The rise of the company referendum is fully in line with this normative upheaval insofar as it was conceived as a means of facilitating the conclusion of collective agreements at the company level. However, such an orientation is not without its difficulties with regard to constitutional rights and freedoms.
Based on this observation, this contribution proposes an analysis of the methods adopted by the legislative to develop the company referendum, in the light of the right to freedom of association and the right to participate in the collective determination of working conditions.
First, it is argued that the company referendum is compatible with constitutional social rights when combined with a process ensuring negotiation. However, this position does not dispense from questioning the precise modalities adopted by the 22 September 2017 Ordonnance and from regretting that the Constitutional Council did not take its analysis further.
Secondly, this article makes arguments in favour of the unconstitutionality of a company referendum when it is purely and simply substituted for collective bargaining. It thus proposes a critical study of the Constitutional Council's response of 21 March 2018 to the appeal lodged against the law ratifying the 22 September 2017 Ordonnance.