France: Deal reached on union representation and bargaining rules
In April 2008, an important but controversial “common position” on reforming the rules governing trade union representation and collective bargaining was signed by a number of national trade union confederations and employers’ organisations.
On this page:
Background
Trade union representativeness
Representativeness and collective bargaining
Workplace representation and elections
Union membership and representatives
Trade union finances
Follow-up and evaluation
Divisions among unions and employers
Legislation to follow.
Key points
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The issue of the “representativeness” of trade unions has been contentious in France for some years. Recognition as having representative status is crucial for trade unions, as this confers rights and privileges in areas such as collective bargaining, workplace elections of employee representatives and representation on various bipartite and tripartite bodies. At present, the criteria for assessing the representativeness of union organisations are set out in legislation dating from 1950 and relate to: membership levels; independence from employers; membership contributions; experience and length of existence; and how “patriotic” the union's attitude was during the Second World War.
The organisations affiliated to the five most “representative” national union confederations (CFDT, CFE-CGC, CFTC, CGT and FO) have an “indisputable presumption of representativeness” at all levels. They are thus exempt from having to prove their representativeness at sector and company level, but other union organisations have to do this in each sector and company.
The statutory rights of trade unions to represent workers and negotiate collective agreements have increasingly been questioned as union membership has fallen steeply since the 1950s. While reliable figures on French union membership are notoriously hard to come by, various studies over the past few years have found that no more than 7%-8% of the workforce are union members, with density at around 15% in the public sector and 5% in the private sector.
A recent study conducted for the Ministry of Labour found that CGT was the largest national union confederation (with around 525,000 members), followed by CFDT (450,000) and FO (310,000). The other two confederations considered as representative, CFTC (105,000) and CFE-CGC (80,000), had fewer members than two organisations that do not have this status - UNSA (135,000) and FSU (120,000).
Against this backdrop, in 2007 the centre-right government asked the social partners to negotiate on trade union representativeness and related issues. It stated that it planned to legislate on the issue, either on the basis of the social partners’ conclusions or, if they failed to reach any consensus, on its own initiative. The talks proved difficult and divisive. They led to the conclusion on 9 April 2008 of a “common position” on “representativeness, the development of social dialogue and the financing of trade unions”, which proposes a number of major reforms. However, the document has been signed on the trade union side by only CFDT and CGT, while on the employers’ side, the main Medef confederation and CGPME (representing small and medium-sized employers) have signed, but not UPA (representing crafts employers).
Trade union representativeness
In order to take account of developments since 1950 and to reinforce the legitimacy of collective agreements signed by unions (in a context where collective bargaining is taking on an ever greater role), the common position states that there is a need to update the union representativeness criteria. It proposes the following criteria:
- number of members and level of membership contributions;
- “financial transparency”, based on the publication of certified annual accounts (in line with legislation currently under preparation on unions’ accounts);
- independence;
- respect for France’s “republican values” (this means a respect for freedom of opinion, politics, religion and philosophy, and a rejection of discrimination and intolerance);
- influence, as measured by activity, experience and geographical and sectoral scope;
- being in existence for at least two years; and
- “audience”, as measured by support in workplace elections of statutory employee representatives.
These criteria would be “cumulative” and considered as a whole.
In more detail, “audience” at company level would be measured by the percentage of votes received by a union’s candidates in the first round of elections to works councils (comités d'entreprise, elected in companies with more than 50 employees), or “single personnel delegations” (délégations unique du personnel, a “hybrid” structure merging works councils and workforce delegates), or - where these institutions are not present - elections of workforce delegates (délégués du personnel, elected in all establishments with more than 10 employees).
At sector and overall national cross-industry level, audience would be measured on the basis of the consolidated results of the abovementioned workplace elections in all the relevant companies. The Ministry of Labour would be responsible for collecting and compiling the data in such a way as to guarantee their accuracy and transparency. The methods used would be agreed in a working group made up of nationally representative trade union confederations, employers’ organisations and the public authorities.
To be considered representative at a company, a union would have to receive at least 10% of the first-round vote in the workplace elections. To be considered representative in a sector, or at cross-industry level, a union would have to receive at least 8% of the total first-round vote in the workplace elections at all the companies concerned. For union organisations, such as CFE-CGC, that represent only a particular category of workers (managerial and professional staff in CFE-CGC’s case), audience would be measured in the elections among this category.
At sector level, as well as having the requisite support in workplace elections and meeting the other criteria, unions would have to have a “balanced” geographical presence across the country, in line with the presence of the industry concerned. At national cross-industry level, as well as having the requisite support in workplace elections and meeting the other criteria, union organisations would have to be present across the various broad sectors of the economy - industry, construction, commerce and services.
The common position proposes that CFDT, CFE-CGC, CFTC, CGT and FO would lose their “indisputable presumption of representativeness” at all levels. Like other union organisations, they and their affiliates would have to meet the new representativeness criteria. Representativeness at company level would be assessed on the occasion of each set of workplace elections, while representativeness at sector and cross-industry level would be assessed every four years (with the first assessment within five years of the common position taking effect).
Representativeness and collective bargaining
At present, the five nationally representative union confederations are the only union organisations allowed to conclude national cross-industry agreements. Organisations affiliated to the five confederations are automatically entitled to conclude collective agreements at sector level, while other union organisations are entitled to do so if they prove their representativeness in the sector involved. At company level, organisations affiliated to the five confederations are automatically entitled to appoint union delegates (délégués syndicaux), who are empowered to conclude collective agreements, while other unions may appoint such delegates if they prove their representativeness in the company concerned.
The common position provides that trade union organisations recognised as representative on the basis of the new criteria would be entitled to engage in collective bargaining at the level where this representativeness applies. This means they could negotiate in companies or sectors where they are recognised as representative, or at cross-industry level if recognised as being nationally representative.
However, for a transitional period, the affiliates of union confederations recognised as representative at national cross-industry level would automatically be granted representative status and bargaining rights in all sectors, even if they have not achieved sufficient support in workplace elections in a particular sector, as long as they meet the other representativeness criteria. Representative union organisations affiliated to a national confederation representing a single category of employee (eg CFE-CGC) would be entitled to negotiate on any issues affecting this category.
With the aim of allowing enterprise-level collective bargaining in companies without trade union delegates, sectoral collective agreements would be able to permit agreements in such companies to be signed by elected employee representatives (works councils, workforce delegates, etc) or by an employee “mandated” by a trade union organisation that is representative at sector level. In sectors where no such enabling agreement is signed (within a year of the common position taking effect) company-level agreements could be signed by elected employee representatives in companies with fewer than 200 employees and no union representatives, or by mandated employees in certain circumstances. This would apply only to issues where legislation requires a collective agreement in order to put some measure into effect.
To be valid, company agreements signed by elected employee representatives would have to be approved by the works council or a majority of workforce delegates, and by a special sector-level joint employer-union committee. Company agreements signed by mandated employees would have to be approved by a majority of the workforce.
The common position also proposes new rules to establish the validity of all collective agreements. For a transitional period (in order to be valid) agreements would have to be signed by one or more trade union organisations that together received at least 30% of the vote in the relevant workplace elections, and not be opposed by one or more trade union organisations that together received a majority of the vote. This transitional system would apply at company level from January 2009, and at sector and cross-industry level once the reformed union representativeness system has taken full effect.
After assessing developments during this transitional stage, the signatories of the common position want to move to a situation where collective agreements must be signed by unions with majority support (in the company, sector or nationally, depending on the level of the agreement) in order to be valid. They will examine the position two years after the transitional system takes effect.
Workplace representation and elections
According to the common position, the introduction of new union representativeness criteria based on the results of workplace elections of employee representatives means that the rules and procedures for these elections need to be updated and simplified.
Workplace elections of employee representatives on works councils and single personnel delegations, and of workforce delegates, would be held in up to two rounds. In the first round, any trade union organisation that has been in existence for two years and meets the criteria of independence and respect for republican values could nominate candidates. If the first round of voting does not fill all the vacancies for representatives, or there is not a quorum, a second round would be organised, in which non-union candidates could also stand.
Alongside the statutory elected employee representatives, representative trade unions - those affiliated to the five confederations, plus others that have proven representativeness in the company - are currently entitled to organise union sections (sections syndicales) in companies. Further, as mentioned above, they may appoint union delegates, who have the power to negotiate and sign collective agreements and are entitled to paid time off and receive protection against dismissal.
The common position provides that all union organisations that have been in existence for two years, and meet the criteria of independence and respect for republican values, could set up union sections. In companies with 50 or more employees, all such sections could designate “section representatives”, who would have rights to paid time off and protection against dismissal but would not have bargaining rights. However, if the union organisation concerned did not achieve representative status at the next workplace elections, the section representative would lose their rights. In companies with 50 or more employees, union sections could nominate a workforce delegate to act as their representative. Only unions that are recognised as representative in the company could nominate union delegates with bargaining rights. These would be chosen from among candidates who won at least 10% of the vote in the most recent elections of employee representatives. Thus, only unions with at least 10% support among the workforce could engage in company-level collective bargaining.
In practice, many small and medium-sized companies have no form of employee representation, whether elected or union-based. In order to promote social dialogue in such firms, the common position calls for obstacles to be removed and for current provisions to be simplified and made more coherent, so that as many employees as possible can be represented collectively. The signatories will therefore set up a joint working party to examine and make proposals on the issue, looking at matters such as: possible changes to current representative structures and their operation; the company workforce-size thresholds above which representatives may be elected; the situation in very small firms; and the impact of the employment protection rules that cover representatives.
Union membership and representatives
Trade unions argue that their legitimacy and effectiveness would be reinforced by increasing their membership. While recruiting members is solely unions’ own responsibility, the common position suggests that certain measures could help them in their efforts, while respecting employees’ freedom to choose whether or not to join a union.
Some companies currently provide assistance and support to unions representing their staff, and the common position states that such schemes should give priority to measures that promote union membership - an example is a “union cheque” scheme, whereby employers give employees a certain sum of money that they may allocate to a union of their choice. Another approach that might be considered is reserving certain collectively agreed benefits for union members only. A joint working party will examine these issues. The common position also calls on the government to consult the social partners about extending tax deductions in respect of members’ union contributions.
A further means of reinforcing the representative function of trade unions identified by the common position is to make it easier for employees to act as lay union representatives, with employers recognising the value of their staff taking on this role. The statutory principle of non-discrimination on grounds of trade union activity should translate into a guarantee that union representatives can have a normal career progression and face no employment problems for performing their union role. The common position says that employers should take positive action in this area, such as:
- making it easier to combine jobs with acting as a union representative;
- ensuring equal treatment with other employees for representatives in areas such as pay, access to training and career development; and
- taking into account the experience gained from acting as a representative in an employee’s career development.
A joint working group will examine practical measures to put these principles into effect. A new “Social Dialogue Foundation” (Fondation du Dialogue Social) will be set up to take initiatives aimed at promoting and supporting employer-union dialogue, including schemes to help people who have acted as full-time union representatives (or taken such positions in employers’ organisations), to return to working life.
Trade union finances
The common position states that there should be rules on the certification and publication of trade unions’ accounts, which take into account the specific features of union organisations and ensure transparency. The document’s provisions in this area also apply to employers’ organisations.
The common position states that trade union organisations have a variety of functions within their basic role of defending the rights and interests of the people they represent, and that this means that they may be financed from a range of sources. However, members’ contributions should represent the principal part of their resources, as this is the only way of guaranteeing their genuine independence. Where employers release employees full time to work for unions, based on the terms of a collective agreement, this should have a clear legal basis and financial transparency should be ensured. With regard to the payments that unions receive from various joint bodies (responsible for social security, training, etc), clear rules should be set out at national level to ensure that these payments are legal, have a defined objective and are fully transparent.
The signatories call on the public authorities to undertake an exhaustive study of all current sources of union financing at the company, sector and cross-industry level, and at all geographical levels.
Follow-up and evaluation
As noted above, the common position creates three working parties, made up of representatives of the signatory organisations, as follows:
- a group on employee representative institutions will be set up in September 2008;
- a group on union representatives and the new Social Dialogue Foundation will be set up in January 2009; and
- a group on promoting union membership will be set up in the first quarter of 2009.
The signatories will conduct regular evaluations of the implementation of the common position and its effect on social dialogue, with an annual meeting to examine the overall picture. They will cooperate with the public authorities on obtaining the data necessary for these evaluations, in areas such as support for unions in workplace elections. On the basis of their assessment, the parties may amend the common position in future.
Divisions among unions and employers
On the trade union side, the common position has been signed by the two largest confederations, CGT and CFDT. CGT said that the text enables the creation of “genuine workplace democracy”, placing all unions on the same footing, and making support among employees the key factor in determining unions’ bargaining power. CFDT stated that the new rules would replace an outdated system that weakened trade unions and would encourage unions to focus on their relationship with employees, creating a “new industrial relations dynamic”.
The three smaller confederations - FO, CFTC and CFE-CGC - have all refused to sign the common position. FO claims that the measures will damage sector-level bargaining and reduce trade union rights, while failing to address the representativeness of employers’ organisations. CFTC also argues that the common position favours company-level bargaining at the expense of the sector, and that the focus on support in workplace elections will make unions devote excessive resources to electoral campaigns in companies.
The Medef employers’ confederation has signed the common position, describing it as the basis for a renewed industrial relations system, closer to the realities of work and placing the company at the centre of representativeness and collective bargaining. It welcomes the possibility of negotiations with elected employee representatives in companies with no union delegates, and argues that unions may now obtain greater legitimacy. The influential UIMM metalworking employers’ organisation, affiliated to Medef, is less enthusiastic about the deal, and especially the new importance given to workplace elections as the basis for union representativeness and collective bargaining. However, it finds the overall text an acceptable “balanced compromise”.
CGPME has also signed the position, calling it a “major advance on the path to the renewal of social dialogue”. It is particularly happy with the new possibilities for concluding agreements in small and medium-sized companies without union delegates. UPA, which is involved in a long-running dispute with Medef and CGPME about an agreement on social dialogue in the crafts sector it signed in 2001, has not signed the common position.
Legislation to follow
The common position states that “its validity is dependent on the adoption of the legislative and regulatory provisions indispensable for its application." The government had, as mentioned above, asked the social partners to negotiate on union representativeness and it plans legislation on the matter during 2008. After the common position was concluded, the minister of labour, Xavier Bertrand, stated that the government will use the text as the basis for drawing up a draft law. He praised the “spirit of responsibility that the social partners have demonstrated by engaging in serious and in-depth discussions”.
The President, Nicolas Sarkozy, has welcomed the common position, saying that it forms “the basis for a profound reform of industrial relations”, while recognising that some social partner organisations do not support the document. He has asked the minister of labour to meet all the trade union and employers’ organisations to discuss their interpretation of the common position, which he acknowledges is not an "agreement" in the strict sense of the word.
This article is based on material provided by Christophe Boulay, European Employment Review correspondent for France.
European Employment Review 412 (EER 412) contents
