Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - France (Ratification: 1951)

Autre commentaire sur C087

Observation

Demande directe

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The Committee notes the observations of the General Confederation of Labour–Force Ouvrière (CGT-FO) received on 9 October 2019, as well as the corresponding comments from the Government. The Committee notes that some of the issues raised which the CGT-FO describes as obstacles to the free exercise of the right to organize are being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and the CGT-FO under article 24 of the ILO Constitution

Article 2. Freedom to form unions. The CGT-FO indicates that when a trade union is established, it is required to submit its articles of association to the town hall. The mayor transmits the articles of association to the Office of the Public Prosecutor (art. R 2131-1 of the Labour Code). The latter must verify that the newly established trade union is not pursuing an aim contrary to public order and morals and that its leaders fulfil the requirements. It alleges, however, that prosecutors or town halls tend to request the submission of documents not required by the regulations, such as identity documents, although nationality should not be taken into account for the establishment of trade unions. The Committee notes that the Government indicates that French nationality does not constitute a criterion for the establishment of a union and that article L 2131-3 of the Labour Code provides that “the founders of any trade union shall submit their articles of association and the names of those who, in any capacity, are responsible for their administration and management”. While recalling that the requirement of certain formalities is not in itself incompatible with the Convention, provided that they do not constitute an obstacle to the right of workers to establish and join organizations of their own choosing, without any distinction, the Committee notes this information . The Committee trusts that the formalities requested by the local authorities will not be applied in a way that can interfere with the right of workers, without distinction whatsoever, including nationality, to establish and join organisations of their own choosing

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. The Committee notes that the concern of the CGT-FO that the Ratification Act No. 2018-217 of 29 March 2018 still does not restore the full freedom of trade unions to choose their representatives. The CGT-FO considers that, under the new legislative provisions, trade unions that appoint their delegates must always be representative unions, and the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. According to the CGT-FO, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that the Government did not take into account its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions.The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. In its view, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions, was not taken into account.

For the CGT-FO, defence of freedom of association would also have required the words “or, failing that” in section L 2143-3 to be deleted, so that the trade union delegate could be chosen from among the ordinary candidates for occupational elections or from among members or former representatives. The CGT-FO indicates, however, that the Government recognizes, in a circular, that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates so that the trade union can choose an ordinary member.

For its part, the Government indicates that section 6 of Act No. 2018-217 of 29 March 2018 added an exception to the obligation (provided for by the previous legislation of 2008) to appoint trade union delegates from among candidates who personally obtained at least 10 per cent of the votes cast, namely, when all of the elected representatives who fulfil this requirement waive in writing their right to be appointed as trade union delegates. According to the Government, the hypothetical outcomes provided for in section L 2143-3 would never put representative trade union organizations in a situation where they could not choose their representative.

The Committee recalls in this regard that : (i) the requirement established by the law of 2008 to appoint trade union representatives from among candidates who have personally obtained at least 10 per cent of the votes cast led to the submission of a complaint to the Committee on Freedom of Association (Case No. 2750); (ii) the Committee on Freedom of Association noted with satisfaction the significant easing brought about by the amendment of section L 2143-3 of the Labour Code by Act No. 2018-217 of the conditions imposed on the appointment of trade union representatives, emphasizing that the reform contributes to the preservation of the right of trade union organizations to freely choose their trade union delegates; and (iii) on that basis, the Committee closed the case (see 389th Report, June 2019).

The Committee further observes that: (i) while the legislation does not explicitly provide for the scenario highlighted by the CGT-FO, the Government recognizes by means of a circular that that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates, so enabling the trade union to choose an ordinary member as a trade union delegate if it so wishes, and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived their appointment as trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass soc. 8 July 2020, No. 19-14605). Noting with interest the progress achieved in terms of legislation and case law with regard to the recognition of the freedom of trade unions to choose their representatives in the enterprise, the Committee invites the Government to provide information on any legislative follow-up given to the above-mentioned ruling of the Court of Cassation.

Compatibility of rules on financial transparency with freedom of association. The Committee notes that, according to the CGT-FO, the requirements of financial transparency and certification of accounts burden the operation of trade union organizations and are contrary to the principle that trade union organizations should organize their administration and activities freely. The CGT-FO considers that the new measures and their application by case law (Cass. soc. 17 October 2018, No. 17-19732 : the accounts published by the trade union should not be out of date when the trade union branch representative is appointed; Cass. soc. 17 October 2018, No. 18-60030: the publication of accounts on the Facebook page of the trade union does not meet the criterion of financial transparency; Cass. soc. 13 June 2019, Nos 18-24814, 18-24817 and 18-24819: the trade union must have published its accounts and must also obtain approval for them from the general assembly or statutory body) would ultimately impede the legal pursuit of trade union activities.

The Committee notes the Government’s indication that in its decision of 30 April 2020, the Constitutional Council found that the obligation on trade unions to meet the requirement of financial transparency “does not ignore freedom of association or the principle of worker participation” (DC No. 2020-835 QPC of 30 April 2020). The Government indicates that: (i) the financial transparency rules imposed on trade union organizations are not opposed to freedom of association as protected by the Constitution but, on the contrary, contribute to ensuring its effective realization. The autonomy and independence of the trade union movement are basic to the collective aspect of freedom of association that financial transparency seeks to guarantee by requiring trade union organizations to make public the sources of their funding; (ii) financial transparency also helps to inform the decision to join a trade union organization by allowing employees to be fully informed of the sources of funding of the organization to which they belong or which they intend to join and the manner in which their membership fee is used by that organization; (iii) with regard to the funds disbursed by the national joint fund management association, trade union organizations and professional employers’ organizations may use their funds freely, provided that they can establish their compliance with legally defined missions of general interest. Organizations receiving funds can also justify their use in a public annual report to the National Joint Funds Management Association (AGFPN), on which the annual report that the AGFPN submits to Parliament and the Government is based; (iv) financial transparency of accounts is also a criterion by which the representativeness of organizations can be identified.

The Committee notes this information and considers that the elements laid before it by the CGT-FO do not allow for a finding that the financial rules or those governing external control of financial reporting exceed the objective of protecting the interests of members and ensuring the democratic functioning of institutions.

Parity in occupational elections. The Committee notes that the CGT-FO finds that the interpretation by the Court of Cassation of the provisions of the law of 17 August 2015 (Article L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff institutions would be incompatible with freedom of a trade union to put forward the candidates of its choice. It alleges that, further to the ruling of the Court of Cassation of 9 May 2018 (No. 17-14088), the diversity obligation imposed when there is a list containing two or more candidates precludes the trade union organization from proposing a sole candidate. The Committee notes that the CGT-FO states that a trade union should, if it so wishes be able to submit a list with a sole candidate (a man or a woman), provided that each sex is represented in the electoral college, and to the extent that a man or a woman can be placed without distinction at the top of the list. The CGT-FO considers that, since the Court of Cassation allows incomplete lists, it must be possible for lists to consist of a sole candidate in order to protect the freedom of trade unions to draw up lists.

The Committee notes that the Government refers to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042) according to which freedom of association, viewed from the perspective of freely choosing representatives, is not absolute: the Court recognized, inter alia, that: (i) the obligation imposed on trade union organizations to submit lists for occupational elections that alternately comprise candidates of both sexes proportionate to the share of women and men in the electoral college concerned is consistent with the legitimate objective of ensuring that employee representation reflects the reality of the electorate and of promoting effective gender equality; and (ii) the legislation envisaged not abstract parity but proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise.

While noting the information provided by the Government with regard to the recognition by legislation and case law of a relationship of proportionality between the number of candidates and the number of male and female employees in the electoral college of the enterprise, the Committee requests the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates.

Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee notes that the CGT FO alleges that in a recent decision (CE, 24 May 2017, No. 392661), the Council of State considerably restricted the standing of a trade union federation to take action by not recognizing the latter's right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend.

The Committee notes the Government’s indication that : (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent, and (ii) under the terms of section L 2133-3 of the Code : “trade union federations shall enjoy all of the rights conferred on occupational trade unions by this Part.” According to the Government, the Council of State’s decision of 24 May 2017 does not in any way restrict the capacity of unions to take legal action but merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision.

The Committee observes that the legal action in question concerned a prefectoral decision having granted an exception to the rule of Sunday rest to a single establishment of a company of retail trade of automobile equipment. The Committee notes that, in the case in question, the Council of State ruled that a departmental trade union federation defending in particular the interests of non-food trade employees, although it had affirmed at a number of federal congresses its objective of preserving the rule of Sunday rest, did not have an interest that would give it standing to apply for the prefectoral decision to be overturned because of the exclusively local nature of the activity of the company concerned which was located in a department neighbouring that of the departmental union in question. Noting the trade union federation concern that even a local exception to a legal rule or principle may be invoked in subsequent cases that affect members’ legitimate interests, and emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requests the Government to provide more detailed information on how this right is regulated in the legislation and in case law, and to indicate in this regard the criteria used by the competent courts to define its contours, including with respect to decisions of allegedly local scope.