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

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - France (Ratification: 1951)

Autre commentaire sur C098

Observation

Demande directe

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The Committee notes the observations of the General Confederation of Labour-Force Ouvrière (CGT-FO) and of the Management Confederation of France-General Confederation of Managers (CFE-CGC), received respectively on 9 October 2019 and 30 October 2020, as well as the corresponding comments of the Government. The Committee observes that some of the issues raised in the observations of the CGT-FO and the CFE-CGC (in particular those regarding the level of collective bargaining, the holding of consultations with employees where the majority trade unions have opposed the signing of an enterprise agreement and the consequences of the merger of institutions representing the staff), are currently being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and CGT-FO under article 24 of the Constitution of the ILO.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes that the CGT-FO claims that, in a worsening social climate, acts of anti-union discrimination appear to be on the rise, such as keeping files of unionized employees, or dismissals on anti-union grounds. In that regard, the CGT-FO states that according to a 2019 enquiry by a public institution, the Defender of Rights: (i) nearly one in three working people (29 per cent) and one in two union members (52 per cent) consider that anti-union discrimination takes place often or very often; and (ii) a third of the working population believes that fear of management reprisals is the factor that dissuades most employees from engaging in trade union activity.

The committee notes that the CGT-FO calls on the Government to go beyond publication of statistics and public surveys, and to demonstrate genuine political will in policies to combat anti-union acts, including (i) extending the period of extra protection against dismissal following the expiry of trade union mandates or of the staff representatives in general which, subsequent to the 2017 reforms, is an aspect of particular importance where the representative institutions of staff are merged; and (ii) proper validation of the added career-value of trade union activities.

The Committee notes that the Government states firstly that Act No. 2015-994 of 17 August 2015 regarding social dialogue and employment instigated supplementary measures to protect unionized workers, in particular elected representatives, against all discrimination or any reprisals based on their trade union activity. The Government indicates in particular that: (i) section 4 of the Act establishes a system of a professional interview at the beginning and at the end of the mandate of elected or appointed staff representatives; ii) that interview is in addition to the two-yearly interview which, since the Act of 2015, can also serve to identify skills acquired during the mandate with a view to validating them; (iii) section 5 of the Act of 17 August 2015 provides a national system for certifying skills derived from exercising an elected or appointed mandate, supplemented by two Orders of the Minister of Labour of 18 June 2018, establishing certification of skills acquired in the exercise of a mandate as a staff representative or a trade union mandate; (iv) as part of the implementation of ordinances adopted in 2017, a guide for employees whose mandate is completed was published in August 2018; (v) section 6 of the Law of 17 August 2015 guarantees wage increases for staff representatives whose hours of union leave were equal or greater than 30 per cent of their hours of work, avoid any inequalities with other employees of the same occupational category and of comparable seniority; and (vi) under the ordinances of 2017 agreements to validate trade union activity can be negotiated at sectoral and enterprise level, a possibility already taken up by several large enterprises. The Committee notes that the Government refers secondly to the respective roles of the labour inspectorate and the courts in combatting anti-union discrimination. The Committee observes that the Government highlights: (i) regular inquiries conducted by the labour inspectorate to identify possible links between workers’ trade union activity and management action against them; (ii) adjusting the burden of proof required by the courts to facilitate the identification of anti-union acts and practices; (iii) reinstatements ordered by the courts in cases of discriminatory dismissal. Finally, the Committee notes the Government’s indication that the Act of 18 November 2016 makes it possible for trade union organizations to bring group actions to put a stop to discrimination affecting several employees.

The Committee takes particular note of the results of the survey on trade union discrimination conducted by the Defender of Rights, brought to its attention by CGT-FO. While welcoming the realization of this survey and encouraging its updating, the Committee observes that the results of the survey reveal the importance of adopting specific measures to strengthen prevention and penalize acts of anti-trade union discrimination, with regular monitoring of their implementation.

In that regard, the Committee takes due note of the legislative framework and the case law in place to provide an effective response to acts of anti-union discrimination. The Committee also notes with interest the guaranteed wage increases for staff representatives, including trade union representatives, as well as the measures taken to validate skills acquired during a staff representation mandate in general and a trade union mandate in particular, measures mentioned in the observations of the CFE-CGE as going in the right direction. The Committee underlines the relevance of such measures which can help to prevent anti-union discrimination. In view of the above, the Committee invites the Government to continue regularly to ensure, including by means of social dialogue, the efficiency and effectiveness of measures to prevent and penalize acts of anti-union discrimination. The Committee requests the Government to continue to provide information in that regard.

Article 4. Promotion of collective bargaining. The Committee notes that the CGT-FO and the CFE-CGC report that Ordinance No. 2017-1385 of 22 September 2017 (hereunder the Ordinance of 2017) would have the effect of weakening the role of trade union organizations in collective bargaining procedures, by allowing, in several situations, agreements to be concluded by non-union actors.

The Committee notes that the trade union organizations make specific reference to: (i) the possibility for the employer, where there is no trade union delegate in enterprises of between 11 and 49 workers, to choose to negotiate either with an elected staff representative or with an employee mandated by a trade union organization; (ii) the possibility, in enterprises of less than 20 employees, where there is neither a trade union delegate nor an elected staff representative, for the employer to draw up, alone and unilaterally, a draft agreement to be approved by the staff by referendum; and (iii) the collective bargaining prerogatives of the works council, a body that at present must be established with the agreement of the majority trade unions, but which could, according to the CGT-FO, under a possible next reform, be generalized in future.

The Committee notes that the CFE-CGC alleges that the above mention reform, by allowing agreements to be concluded without being endorsed by trade union organizations go against the principle that representation of workers by trade union organizations alone guarantees respect for the fundamental objective of regulating the balance of power in labour relations, inherent to the machinery of collective bargaining and given expression by the reference in Article 4 of the Convention to workers’ organizations only.

The Committee also notes that CGT-FO claims that the new mechanisms mentioned above would make it possible, without the participation of a trade union, to set aside the content of sectoral agreements concluded by trade union organizations at a higher level, thereby undermining freedom of association and the right to collective bargaining.

The Committee notes that the Government, for its part, after underlining that the vast majority of enterprises of less than 50 employees do not have a union delegate, maintains that new possibilities for bargaining are now open to them, so that they also can participate in defining better balanced solutions. The Committee notes that the Government indicates in this regard that under the Ordinance of 2017:

-in enterprises of fewer than 11 employees without a union delegate, and in those with a staff of between 11 and 20 employees, where there is no member of the staff delegation on the social and economic committee, the employer may propose a draft agreement to the employees which, to be valid, must have the approval of a two-thirds majority of employees, on the model of approval of profit-sharing agreements (sections L. 2232-21 to L. 2232-23 of the Labour Code);
-in enterprises where the usual staffing level is between 11 and 50 employees in which there is no union delegate, the employer may negotiate either with an employee (who may or may not be a member of the social and economic committee) mandated by a trade union organization, or with a member of the staff delegation on the social and economic committee. Where an agreement is signed by a mandated employee who is not a member of the staff delegation on the social and economic committee, it must be approved by a majority of the employees. (section L. 2332-23-1);
-Finally, in enterprises with more than 50 employees in which there is no union delegate, the rules in force prior to this Ordinance remain valid, with the obligation to negotiate with a mandated member of the staff delegation on the social and economic committee or, if none of the members wishes to be mandated, by a non-mandated member or, if no member of the staff delegation wishes to negotiate, with a mandated employee (sections L. 2232-24 to L. 2232-26).

The Committee also notes the background information provided by the Government regarding density of trade union presence, collective bargaining and social dialogue in small and very small enterprises, which the Government claims justify the adoption of the measures cited above. The Government underlines that (i) trade union organizations have a very slight presence in small enterprises, since only 4 per cent of enterprises with 11 to 50 employees have a trade union delegate to negotiate agreements; and (ii) the system of mandating by a representative trade union in the sector has not proved its worth; thus, in 2017, out of more than 30,000 enterprise agreements concluded, only 197 were concluded with a mandated employee. This is especially marked in enterprises of less than 11 employees, where only 31 agreements were signed by a mandated employee and use of the mandating system concerned less than 1 per cent of enterprises entering into bargaining.

The Committee notes that the Government states, in this regard, that (i) the adapted modalities for collective bargaining were envisaged to take account of the reality of these small enterprises and to avoid their exclusion from the possibilities offered by enterprise agreements; (ii) those modalities do not however circumvent trade union organizations, since article L. 2232-21 of the Labour Code provides explicitly for their application in the absence of a trade union delegate or of an elected member of the staff delegation on the social and economic committee; (iii) the absence of prior negotiation with the trade union organizations cannot therefore constitute circumvention of those organizations since the mechanism in dispute is predicated on the hypothesis that negotiation with the trade union organizations is impossible, where the persons authorized to negotiate are absent; and (iv) the aim of the provisions is thus to bring pragmatic solutions allowing agreements to be concluded even in very small enterprises where dialogue between employer and workers is generally of an informal nature.

The Committee also notes that the Government adds that the Ordinance of 2017 provides the new collective bargaining mechanisms in small and very small enterprises with a certain number of guarantees to maintain the balance of the bargaining and protect the role of trade union organizations. The Committee notes that the Government indicates in this regard that: (i) in the case of draft agreements submitted directly to employees by the employer, the Labour Code establishes a minimum period of 15 days between the time at which the employer submits the draft and the time at which consultations with the staff may be held; the purpose of this 15 day period is to allow the employees to contact the departmental trade union organizations and/or the Observatory for the Analysis and Support of Social Dialogue and Bargaining of the department, so that they may provide information on the process and content of the proposed agreements; (ii) the large, two-thirds majority required for approval of the draft agreement obliges the employer to enter into dialogue with the employees, who become genuine stakeholders in the agreement; and (iii) in respect of bargaining with elected staff representatives where there is no trade union delegate, the scope of application of this type of bargaining is more restricted than bargaining in which trade union organizations participate, because the scope of agreements reached can solely cover implementing provisions of the law, or where the law imposes an agreement.

Finally, the Committee notes the information provided by the Government regarding the alleged impact of the establishment of works councils on the role of trade union organizations in collective bargaining. The Committee notes that the Government states in this regard that the notion that trade union organizations would be ousted from collective bargaining where works councils are recognized as competent in that field is unfounded in that: (i) the Labour Code stipulates that the establishment of a works council must be subject to signing an enterprise or sectoral agreement which is, by definition, concluded by the representative trade union organizations; and (ii) the representative trade union organizations in an enterprise are represented on the works council in the same way that they are on the social and economic committee and therefore participate fully in bargaining conducted by the works council.

The Committee takes due note of the information provided by the trade union confederations and the Government regarding the content of the Ordinance of 2017 in respect of collective bargaining and the effect of this reform on the role of trade union organizations. The Committee notes in particular the changes introduced in the methods of concluding enterprise agreements in small and very small enterprises where there is no trade union delegate. In that regard, the Committee notes that under French law, the participation of trade union organizations in the negotiation and conclusion of enterprise agreements is ensured either through a trade union delegate (a worker appointed, according to the express provisions of the Labour Code, by a representative trade union to represent it in enterprises of at least 50 employees; in enterprises of between 11 and 50 employees, elected staff representatives may also be appointed as delegates by trade unions), or through a mandated employee (an employee of an enterprise where there is no trade union delegate, given a mandate by a representative trade union organization to negotiate an enterprise agreement in its name).

The Committee notes that before the reform of 2017, in a context of low trade union presence in small enterprises and of a coexistence established under the French legal order of elected staff representatives and a trade union representatives, the legislation already provided for the possibility of concluding enterprise-level collective agreements by non-union actors in instances where there was neither a trade union delegate nor a mandated employee. At that time, it was possible for elected staff representatives to conclude collective agreements, the material scope of which was, however, limited to the measures whose implementation was subject by law to a collective agreement and whose content was, until the law of 8 August 2016, subject to prior approval by a joint sectoral committee.

The Committee notes that, as indicated both by the Government and the confederations, the Ordinance of 2017 effectively enlarges the situations in which an enterprise agreement may be concluded without signature by a trade union organization to the extent: that (i) mandating of an employee by a trade union organization is no longer envisaged for enterprises of fewer than 11 employees,; ii) in enterprises of fewer than 11 employees as well as in enterprises of between 11 and 20 employees, where there are no elected staff representatives, , a new, direct method of concluding an agreement between employer and employees is established; and (iii) in enterprises of between 11 and 49 employees where there are both elected staff representatives and an employee mandated by a trade union organization, the employer may now chose his or her bargaining counterpart (on the understanding that if bargaining takes place with an employee mandated by a trade union, but not elected by the staff, the staff must be consulted in its respect).

In respect of determining who is to enter into collective bargaining, the Committee recalls that Article 4 of the Convention refers on the one hand to employers and their organizations and, on the other, to workers’ organizations. On that basis, the Committee considers collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. Indeed, the Committee considers that direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations, where they exist, may undermine the principle of the promotion of collective bargaining set out in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 239).

In this regard, the Committee takes due note of the Government’s indication, supported by statistics, of the very low trade union presence in small and very small enterprises and its wish to adopt a pragmatic approach in promoting true social dialogue in such enterprises. The Committee also notes the figures provided by the Government concerning the practical implementation of the new modalities for collective bargaining arrangements in small and very small enterprise, according to which in 2018, excluding the instruments relating to employee savings plans: (i) 1,443 agreements were filed by enterprises with fewer than 11 employees, of which 75 per cent were subject to two-thirds ratification; and (ii) 850 agreements were filed by enterprises with 11 to 20 employees, of which 34 per cent were subject to two-thirds ratification.

At the same time, the Committee again observes that under the legislation in force subsequent to the 2017 reforms: (i) the appointment of a trade union delegate by a representative organization is explicitly provided, on the one hand, in enterprises of at least50 employees (section L. 2143-3 of the Labour Code) and, on the other, in enterprises of between 11 and 49 employees in which an elected staff representative may also be appointed as trade union delegate (section L. 2143-6); (ii) the mandating of an employee by a representative trade union organization is provided for enterprises of more than 11 employees where there is no trade union delegate (sections L. 2232-23-1 and L. 2232-24 and following of the Labour Code), while once again noting that in enterprises of between 11 and 20 employees, where there is neither a trade union delegate nor an elected representative, the employer may submit a text directly to a vote of approval by employees (section L. 2232-23 of the Labour Code).

Recalling that under the terms of the Convention collective bargaining with non-union representatives should only be possible when there are no trade unions at the respective level, the Committee requests the Government to: (i) specify the modalities in place to allow workers in enterprises of fewer than 11 employees on the one hand and of enterprises of 11 to 20 employees where there is no elected staff representative on the other, to engage, should they so wish, in bargaining and in concluding agreements regulating their working conditions and terms of employment through trade unions representing them (in cases where these modalities are included in sectoral collective agreements, it is requested to indicate the agreements providing for such possibilities); and (ii) give details of the measures taken to promote collective bargaining within the meaning of the Convention in small enterprises.

The Committee also notes, as underlined by the CGT-FO and the CFE-CGC, that the Ordinance of 2017 widens the range of subjects that can be included in an agreement that is not signed by a trade union organization in that, in enterprises of fewer than 50 employees, such agreements may now cover all areas open to collective bargaining. The Committee notes in that regard that, by virtue of the Ordinance of 2017, with the exception of a number of issues specifically defined by the law, the contents of enterprise agreements now take precedence over those concluded at a higher level (section L. 2253-3 of the Labour Code). The Committee observes that, in these circumstances, enterprise agreements that are not signed by a trade union organization, in particular in companies with fewer than 50 employees and including those arising from a proposal from the employer and submitted to a vote by the employees, can set aside, for a significant number of subjects open to collective bargaining, clauses that are more favourable to employees established in sectoral agreements and signed by representative trade union organizations. With regard to the implementation in practice of these possibilities of derogation, the Committee notes: (i) on the one hand, the concerns expressed by the CFE-CGC on the lack of sufficient guarantees to ensure the balance of the content of the agreements concluded in enterprises with less than 20 employees on the basis of a vote by the employees; and (ii) on the other hand, the Government's corresponding response focusing on collective performance agreements (types of collective agreements established by the Ordinance of 2017 that allow for the adjustment of working hours, remuneration or mobility of employees with the aim of preserving or developing employment or meeting the operating needs of the enterprise) and underlining that of the 297 collective performance agreements established until the end of December 2019, only 21 had been concluded through employee consultation. At the same time, the Committee also notes that, in its interim report of July 2020, the evaluation committee on the implementation of the ordinances concerning social dialogue and industrial relations established by the Ministry of Labour questions the ability of the collective performance agreements to reach balanced compromises and the use of negotiation modalities at the enterprise level in the context of the economic crisis generated by the COVID-19 pandemic.

Underlining that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations in favour of agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee requests the Government: (i) to provide information on the frequency and extent in practice of derogations from higher level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher level agreements enjoyed by agreements signed by non-union actors. The Committee requests the Government to provide information in this regard.

Finally, the Committee notes the additional information from the Government regarding the adoption of recent legislation and indicating that: (i) the Labour Act of 8 August 2016 promotes a culture of dialogue and bargaining by encouraging negotiation of agreed methodologies, setting out the stages of the bargaining to come and the information to be shared, and can also provide for specific additional resources; (ii) the social partners dispose of a wider margin for establishing the duration of collective agreements; and (iii) Act No. 2019-485 of 22 May 2019 and Act No. 2019-1428 of 24 December 2019 establish work-life balance of workers bearing a caregiver responsibility at home and transport from the place of residence to the workplace as new subjects for obligatory bargaining. The Committee welcomes these innovations which reinforce collective bargaining machinery and widen the field of their application.

[The Government is asked to reply in full to the present comment in 2021.]