Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 of the Constitution). The Committee notes with interest the repeal by Act No. 2008-596 of 25 June 2008 of  the “contract of new employment” (CNE) scheme, which was the subject of a representation made under article 24 of the ILO Constitution alleging non-observance by France of the Convention and of the Termination of Employment Convention, 1982 (No. 158). It also notes, according to the information provided by the Government, that all current CNEs have been re-categorized as contracts for an indefinite period.

Non-discrimination and equality of opportunity and treatment. Legislative developments. The Committee notes with interest the amendment of article 1 of the Constitution by an Act of 23 July 2008 and the adoption of Act No. 2008-496 of 27 May 2008 issuing various provisions adapting the national legislation to community law in the field of combating discrimination, which implements and completes the transposition of five European Directives and amends the Labour Code, among other texts. Article 1 of the Constitution now explicitly provides that “the law shall promote the equal access of women and men to electoral mandates and elected functions, as well as to professional and social responsibilities”. Furthermore, following the adoption of Act No. 2008-496 of 27 May 2008, the Labour Code refers to the definition of direct and indirect discrimination in employment given in that Act (see below L.1132-1 and L.1134-1) and includes provisions specifying the conditions in which differences of treatment are possible without infringing the principle of the prohibition on discrimination (sections L.1133-2 and L.1142-2). The Act, which applies to all public or private persons, including those engaged in a self-employed activity, also provides that the instruction to discriminate constitutes discrimination and contains provisions on the protection of victims and the witnesses of discriminatory acts against any retaliatory measures, the burden of proof and moral or sexual harassment. Noting this information, the Committee requests the Government to provide information on the application of article 1 of the Constitution and the provisions of Act No. 2008-496 of 27 May 2008 in practice.

Discrimination on the basis of race and national extraction. The Committee notes that in 2009, “origin” was the ground of discrimination referred to most often in complaints concerning employment received by the High Authority to Combat Discrimination and Promote Equality (HALDE) and that a high percentage of the deliberations of this body also concern this ground. It also notes that, according to a report published in November 2010 by the National Institute of Statistics and Economic Studies entitled “France – Social portrait 2010”, during the period between 2005 and 2008, on average 86 per cent of French men aged between 16 and 65 years and 74 per cent of women had a job when both of their parents were of French birth, whereas the employment rate was 65 per cent among men and 56 per cent among women where at least one of their parents was an immigrant originally from a Maghreb country. The study emphasizes that these disparities are not entirely due to discrimination, but recalls that recent surveys have shown the existence of discrimination on the basis of “origin” during recruitment.

The Committee notes the information provided by the Government concerning awareness raising and the training of public and private actors on the prevention of discrimination, particularly in the public employment service, temporary employment agencies, consular chambers managing training, enterprises which have signed partnerships and trade union organizations. In its report, the Government also mentions preventive activities carried out by the commissions for the promotion of equal opportunities and citizenship at the departmental level and mentions the existence of town contracts which include measures to combat racial discrimination. The Committee notes the Government’s indication that ownership by local actors of measures to combat discrimination still needs to be broadly established. With regard to measures to combat discrimination in recruitment faced by young persons with immigrant parents, the Government indicates that activities have been carried out focusing on three areas: measures to support young persons in their search for employment, particularly through sponsorship, support for the creation of enterprises or skills development; raising the awareness of enterprises of the need to diversify their recruitment; and combating professional down-grading by seeking a better match between qualifications and employment levels for higher education graduates.

Emphasizing the particularly important role of workers’ and employers’ organizations in promoting equality in employment and occupation, the Committee notes that the Inter-Occupational Agreement on Diversity in Enterprises, which was signed in 2006 by the social partners and made obligatory in 2008, provides for the implementation of action focusing on the commitment of managers of enterprises, awareness raising and combating stereotypes. The Committee also notes that in May 2009, an action programme and recommendations on diversity and equal opportunities were drawn up by the Commissioner for Diversity and Equal Opportunities and that it contains a list of measures to be taken to promote equal opportunities in education and employment. Finally, it notes from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) that France is drawing up a national plan to combat racism (CERD/C/FRA/CO/17-19, 27 August 2010, paragraph 9). The Committee hopes that the national plan to combat racism will include a section on employment and occupation, including education and vocational training, developed in collaboration with employers’ and workers’ organizations, and asks the Government to provide information in this regard.

The Committee also notes the report of the United Nations independent expert on minority issues following her visit to France in September 2007. Noting that members of minority communities are confronted with serious racial discrimination, she issued a number of recommendations, such as the need to establish more severe penalties so that they are sufficiently dissuasive in cases of discriminatory practices and the importance of putting in place robust affirmative action policies to counter the effects of long-term discrimination (A/HRC/7/23/Add.2, 4 March 2008, paragraphs 78 and 79). Furthermore, the CERD noted with regret in its concluding observations that “notwithstanding recent policies to combat racial discrimination in housing and employment, persons of immigrant origin or from ethnic groups … continue to be the target of stereotyping and discrimination of all kinds, which impede the integration and advancement at all levels of French society” (CERD/C/FRA/CO/17-19, 27 August 2010, paragraph 13).

Noting this information and the numerous measures and schemes established at both the national and local levels to combat discrimination on the basis of race, national extraction or ethnic origin, the Committee expresses concern at the fact that these measures do not appear to be producing sufficient results and requests the Government to strengthen its action to combat effectively discrimination on the basis of race or national extraction and to actively promote equality in employment and occupation. The Committee requests the Government to provide statistics allowing the Committee to assess the impact of the measures to promote equal opportunities and treatment in employment, including in education and vocational training, irrespective of race or national extraction. The Government is also requested to provide information on the following points:

(i)    any measures taken to promote tolerance and respect among all members of the population and to combat the persistent stereotypes and prejudices suffered by persons from an immigrant background or members of ethnic groups, including in the overseas departments and regions;

(ii)   the follow-up to the action programme and recommendations of the Commissioner for Diversity and Equal Opportunities in Employment and Occupation;

(iii)  the measures taken to combat discrimination on the basis of race, national extraction and ethnic origin in employment in the context of the future national plan to combat racism; and

(iv)  the action taken by the social partners to implement the Inter-Occupational Agreement on Diversity in Enterprises made obligatory in 2008 and to promote collective bargaining on this issue.

Promotion of equality of opportunity and treatment in the public service. The Committee notes that a Charter for the promotion of equality in the three branches of the public service was signed in December 2008 by the Minister responsible for the public service and the President of HALDE. The aim of the Charter is to establish recruitment conditions that are tailored to needs without discrimination, make career paths more dynamic, raise the awareness of and train employees of the administration and disseminate good practices. The Committee notes that the first assessment of the implementation of the Charter, given in the annual report on the state of the public service (Policies and practices 2009–10), shows progress in the mobilization of Ministries and the start of social dialogue, the opening up of the public service following the establishment of various integrated preparatory classes (CPI) and the development of mentoring mechanisms, and several good practices to encourage professional development. The assessment also shows a poorer mobilization with regard to human resources management and access to training, as well as weaknesses relating to the establishment of diagnostic assessments on existing inequalities and alert mechanisms. The Committee notes that, according to the recommendations made by HALDE on this matter, there is a need to continue and intensify the efforts made, particularly with regard to training and informing staff to help them to identify potentially discriminatory situations and for the identification of sources of discrimination, the necessary procedures to verify the objectiveness of decisions, support for the victims of discrimination and overall follow-up of the measures taken. The Government also indicates that it has implemented a system of allowances for diversity aimed at persons preparing for a competitive entrance examination (categories A and B) and a scheme (“the Pact”) providing poorly qualified young persons with alternative training with a view to obtaining employment in category C. The Committee also notes that, in its report, the United Nations independent expert on minority issues considers that the public sector must lead by example in promoting and ensuring equality and that the Government should undertake more aggressive strategies to increase the number of people with immigrant background in the public service, particularly the police, civil service and the judiciary, and that these efforts should be evaluated on the basis of results or outcomes (A/HRC/7/23/Add.2, 4 March 2008, paragraph 86). Noting the efforts made not only to combat discrimination in the public service, but also to promote equal opportunities and treatment, the Committee requests the Government to provide information on the implementation of these measures and schemes, including the Charter of 2008, as well as of any action plan adopted to promote equality in employment and occupation, the obstacles encountered and the evaluation of the overall results of these measures, including appropriate statistics, on access by all to the public service without discrimination on the basis of any of the grounds prohibited by the national legislation and the Convention.

Furthermore, the Committee notes the comments communicated in May 2010 by the National Union of Scientific Researchers and the National Autonomous Union of Sciences concerning the career reorientation programme following a restructuring established under Act No. 2009-972 of 3 August 2009 on mobility and career paths in the public service. The trade union organizations emphasize the potentially discriminatory nature of the programme which would allow changes of jobs and even of employer within the public service without competitive entrance examinations. Noting the Government’s reply received in November 2010, according to which the career reorientation programme is based on ongoing dialogue between the administration and the employee concerned, the Committee requests it to ensure that the implementation of this programme in the event of a restructuring of the public service does not give rise to discriminatory practices prohibited by the legislation and the Convention.

Discrimination on the basis of religion. In its previous comments, the Committee urged the Government to provide information on the application of Act No. 65 of 17 March 2004 and its implementing circular of 18 May 2004 concerning the prohibition of wearing in public schools any conspicuous religious signs or apparel on pain of disciplinary measures including expulsion. In the absence of a reply from the Government on this point, the Committee is bound to repeat its request to provide information on the following points:

(i)    any court ruling or administrative decision concerning the application of the above legislation;

(ii)   the numbers of boys and girls who have been expelled from school on the basis of the Act; and

(iii)  the measures taken to ensure that the pupils who have been expelled nonetheless have adequate opportunities to acquire education and training.

The Committee also requests the Government to ensure that the application of this Act does not have the effect of reducing the opportunities of girls to find employment in the future.

The Committee is raising other points in a request addressed directly to the Government.