France: Government proposes law on employee representation in small firms
The French Government issued draft legislation in April 2010 aimed at improving the collective representation of employees in companies with fewer than 11 staff, which are not currently covered by statutory representation structures.
On this page:
Representation
gap
Regional trade union polls
Joint
commissions
Unsuccessful talks
Mixed
reactions to draft law
Next steps.
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Key points
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France's [Article:98434#7.3 "statutory employee representation structures"] do not apply to very small companies. Workforce delegates (délégués de personnel) must be elected only in establishments with at least 11 employees. The main role of workforce delegates is to: represent employees' individual and collective grievances to management; raise with management any problems that they identify themselves; and ensure the application of employment law and collective agreements. Works councils (comités d'entreprise), which have information and consultation rights, are required only in companies with 50 or more employees.
This long-standing representation gap in small firms was highlighted when legislation adopted on 20 August 2008 introduced new criteria for assessing whether or not trade unions are "representative". Representative status grants unions bargaining rights and other entitlements. The new criteria are based largely on the trade unions' "audience", measured as the support their candidates receive in the four-yearly elections of workplace employee representatives. The absence of these representatives in firms with fewer than 11 staff means that their employees, of whom there are some four million, are excluded from this calculation.
On 21 April 2010, the Government published draft legislation "completing" the law of 20 August 2008. It aims to "reinforce the effectiveness of collective employee representation and measure the audience of trade union organisations in small enterprises". The proposal would introduce trade union elections among the employees of companies with fewer than 11 staff, organised on a regional basis, and allow for the creation of "joint commissions" to represent the employees of small firms in a particular geographical area.
Regional trade union polls
In order to gauge the support for the various trade unions among employees in small firms, the draft law provides for four-yearly polls of employees of all companies that had fewer than 11 staff at the end of the year preceding the vote. The voting would be by post or electronic means, rather than at the workplace, and separate polls would be held in each region of France. The polls would be conducted in two "electoral colleges" - one for professional and managerial staff, and one for all other employees.
The list of employees eligible to vote would be drawn up by the Ministry of Labour on the basis of the information on their workforces provided by companies to the social security authorities.
In the polls, employees would vote for trade unions rather than specific candidates. Trade unions could stand in the poll if they are affiliated to a union organisation that is considered to be representative at national, cross-industry level - at present, these are the CFDT, CFE-CGC, CFTC, CGT and FO confederations. Other unions could stand if they: are independent; have been in existence for at least two years; respect France's "republican values"; and have a presence in the region concerned.
Joint commissions
The draft legislation provides that trade unions and employers' organisations at sector level could, by agreement, set up joint commissions at regional, departmental, local or national level. These commissions would provide a degree of collective representation for employees of all firms with fewer than 11 employees in the sector concerned and within the particular commission's geographical scope. The commissions' main role would be to ensure the application of sectoral collective agreements and "provide assistance with social dialogue" for employees and employers in these small companies.
The composition of the joint commissions would be determined by collective agreement. On the trade union side, representation on the commissions would be based on the support expressed for each union in the regional polls, within the sectoral and geographical scope of the commission.
The agreements establishing the joint commissions would have to provide for paid time off for those employees of small companies that participate in the commissions. These employees would also receive statutory protection against dismissal.
Unsuccessful talks
The law of 20 August 2008 was largely based on a national cross-industry agreement reached by a number of trade union confederations and employers' organisations in April 2008. This agreement provided for the establishment of a joint working party to examine how to remove obstacles to social dialogue in small companies and reinforce the effectiveness of collective employee representation, so that as many employees as possible can be represented collectively. The August 2008 legislation then called on the social partners to negotiate a national cross-industry agreement during 2009 on the "means of reinforcing the effectiveness of collective employee representation in small companies and of measuring trade union representativeness [in these companies]".
Attempts to negotiate on these issues proved difficult. The joint working party specified in the April 2008 agreement has never met. When talks opened in late 2009 in response to the call for negotiations in the legislation, which the Government had reiterated in February 2009, divisions became apparent, both between employers' organisations and trade unions, and within the employers' camp. The three main national employers' bodies are: Medef, which represents employers generally; CGPME, which represents small and medium-sized firms; and Upa, which represents small-scale employers in the crafts and artisan sector.
The unions wanted to deal simultaneously with employee representation in small firms and measuring union representativeness in such companies, while Medef and CGPME wanted to focus solely on representativeness, a view not shared by Upa. As a result, Medef and CGPME pulled out of the talks in December. However, Upa continued discussions with the unions and in January 2010 signed a joint letter to the Government with four out of the five union confederations (CFDT, CFE-CGC, CFTC and CGT).
The letter called for a new system of representing employees and measuring union support in companies with fewer than 11 employees. If such firms do not introduce some form of representation voluntarily, employees should be represented through local joint commissions, covering a number of small firms in a particular geographical area. Employees in the companies concerned would elect representatives directly to the joint commissions. These elections would also enable support for the various unions' candidates to be measured, for the purposes of assessing representativeness. Details of the election procedure would be laid down by sectoral collective agreements.
Mixed reactions to draft law
Given the complicated background to the draft legislation, the social partners' reactions have, predictably, been mixed. Only Upa is enthusiastic, describing the proposals as a solution that is in line with the reality faced by very small firms and respects the spirit of the January 2010 joint letter.
Upa is pleased that the Government has not proposed creating any internal employee representation structures in companies with fewer than 11 employees, stating that: "Upa and the million company owners that it represents are relieved to see that the Government has not taken up the idea of electing a workforce delegate in companies with five or even three employees, as envisaged by some large member federations of Medef (such as those in chemicals and metalworking)." Upa much prefers the Government's proposed alternative of geographically based joint commissions, but this has proved controversial with the other social partners.
CGPME is particularly opposed to the idea of joint commissions. It claims that "under the pretext of ensuring the application of collective agreements and providing assistance with social dialogue, very small companies are at risk of having external parties interfering in the management of their enterprises". However, Eric Woerth, the minister of labour, has rejected this argument, underlining that the commissions would not have the power to negotiate or have access to companies. He also stressed that the proposed polls to gauge union support would not involve any new costs or burdens for companies.
Medef regrets that fact that the Government has proposed legislation that is "neither necessary nor urgent", because "neither the managers nor the employees of very small companies want the introduction of new social dialogue bodies". It claims that the law would introduce "useless and complex" elections and representation bodies, which do not fall within the provisions of the cross-industry agreement signed in April 2008.
Trade unions criticise the fact that it would not be obligatory to set up joint commissions, and that the draft legislation leaves the issue to sectoral collective agreements, with no fall-back statutory provisions if agreement cannot be reached. The CFTC confederation claims that the commissions are merely "hypothetical" and a "trick" to "hide the Government's support for the employers' position of refusing to establish social dialogue for small enterprises".
The unions are also opposed to the proposal that employees would vote for unions themselves, rather than specific candidates nominated by unions. For example, the CFDT argues that employees have the right to choose their representatives by name. The CFDT has also been scathing about the position of Medef and CGPME, accusing them of going back on the April 2008 agreement, first by refusing to open talks on collective representation, and now by lobbying against the creation of directly elected joint commissions.
Next steps
The Government is consulting the National Collective Bargaining Commission - on which unions and employers' organisations are represented - on the draft law during May 2010. The proposal should then be considered by Parliament before the summer break.
As well as the issue of social dialogue in small firms, the draft legislation deals with industrial tribunals (conseils de prud'hommes). These tribunals, which deal with disputes relating to individual employment contracts, are made up of equal numbers of representatives of employers and employees, elected every five years in a nationwide poll. The next elections are due in 2013, but the Government is now proposing to extend the term of current members beyond this date, to 31 December 2015 at the latest. The aim is to allow time for the Government to reform the way in which members are appointed, in the light of a sharply falling turn-out in the elections.
This article is based on material provided by Christophe Boulay, correspondent for France.
European employment policy, practice and law, May 2010
