France: Government proposes reform of rules on union representation and working time

In June 2008, the government published draft legislation amending the rules on trade union representativeness and collective bargaining, and making the statutory 35-hour working week more flexible through company-level agreements.

On this page:
Union representativeness and bargaining
      New representativeness rules
      Collective bargaining rules
      Union finances
      Other issues
Working time
      Overtime
      "Inclusive" working time arrangements
      Variable working time
Controversy.

On 18 June 2008, the cabinet adopted draft legislation on the "renewal of industrial democracy and the reform of working time". It has two parts: one overhauling the rules on trade union "representativeness" and collective bargaining; and the other reforming the statutory 35-hour working week, allowing more flexibility and providing more possibilities to work longer hours. The legislation should be adopted by parliament by the end of July.

On union representativeness and bargaining, the draft legislation enacts the "common position" on the issue signed in April 2008 by the two largest union confederations (CFDT and CGT), and two national employers' organisations (Medef, the largest organisation, and CGPME, representing small and medium-sized companies). Notably, it would make achieving a certain level of support in workplace elections of employee representatives a precondition for allowing trade unions to engage in collective bargaining.

Controversially, on working time, the draft goes much further than the common position, allowing company collective agreements to deviate from the 35-hour week in various ways, arguably to the extent of emptying it of much of its effect. This is the latest stage in a process of "repairing the damage" caused by the 35-hour week, which was introduced in 1998, reflecting promises made by president Nicolas Sarkozy, who wants to "unlock" working time.

UNION REPRESENTATIVENESS AND BARGAINING

The draft legislation aims to give legal force to the provisions of the social partners' April 2008 common position (negotiated at the behest of the government) on reforming the rules on trade unions' representativeness and bargaining rights. 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.

New representativeness rules

It is proposed that the current criteria for assessing whether trade union organisations are representative (dating from 1950) should be revised. The new criteria would include:

• the number of members and level of membership contributions;
• "financial transparency";
• independence;
• respect for France's "republican values";
• influence; length of existence; and
• "audience".

These criteria would be "cumulative" and unions would have to meet them all, but the weight of each criterion in the overall assessment would vary, depending on specific situations.

"Audience" would be measured, on a four-yearly basis, by the percentage of votes received by a union's candidates in workplace elections of employee representatives - members of statutory works councils and "single personnel delegations" or workforce delegates. To be considered representative at company level and engage in collective bargaining at this level, unions would have to obtain at least 10% of the vote in elections. At sector level, they would have to obtain 8% of the vote across the industry concerned. The ultimate aim is a 10% threshold at both levels. Special rules would apply to unions that represent only a specific category of employees (eg the managerial and professional unions affiliated to the CFE-CGC confederation).

Smaller companies are not obliged by law to hold elections of employee representatives (works councils are compulsory only in companies with more than 50 employees). The draft would delegate to national cross-industry negotiations the task of finding ways to improve employee representation in these firms and measure unions' audience in sectors where most employees work in small firms.

A High Council for Social Dialogue would be established to draw up lists of representative union organisations.

The draft legislation would modify the current rules on elections of works council members and workforce delegates, giving the right to field candidates in the first round of voting to all legally constituted union organisations that have been in existence for at least two years and meet the criteria of respect for republican values and independence. Unions affiliated to national confederations that are recognised as representative would automatically be considered to meet these requirements.

Union delegates are union-appointed representatives in companies who are empowered to conclude collective agreements at this level and have various rights, including paid time off. Under the draft law, all representative unions would be able to appoint delegates in undertakings or establishments with more than 50 employees, chosen from candidates who won at least 10% in the most recent elections of employee representatives.

At present, only representative trade unions are entitled to organise "union sections" in companies. This right would be extended to all legally constituted union organisations that have been in existence for at least two years and meet the criteria of respect for republican values and independence, and would apply to undertakings or establishments with more than 50 employees. All union sections set up by non-representative unions could designate a "section representative", who would have rights such as paid time off but not bargaining rights, until the union's representativeness is tested in the next workplace elections.

Collective bargaining rules

The draft law provides that, in order to be valid, all collective agreements - at company, sector or cross-industry level - would have to be: signed by trade unions that together received at least 30% of the vote in the most recent workplace elections (in the company or sector concerned, or nationally); and not opposed by unions that together received a majority of the votes in these elections.

Sectoral collective agreements would be able to lay down rules on how to conduct collective bargaining in companies without any union delegates. In sectors where no such enabling agreement is signed (by the end of 2009), new statutory rules would apply. These would allow collective agreements in companies with fewer than 200 employees and no union delegates to be signed by elected employee representatives (works council members, workforce delegates etc) or by employees "mandated" by a representative trade union organisation. This scheme would apply only where legislation requires a collective agreement in order to put some measure into effect.

Union finances

The draft legislation seeks to ensure greater transparency in the finances of trade unions (the measures in this area would also apply to employers' organisations). Unions' resources and expenditure should have a clear link with their objective (ie defending the rights and interests of the people they represent) and should be detailed in certified annual accounts. Membership contributions should make up the principal part of unions' resources, in order to guarantee their independence. The draft legislation includes provisions on the certification and publication of unions' accounts, and on a new levy of 0.15% of paybill on employers to finance dialogue with trade unions.

Other issues

The draft law lays down transitional arrangements on union representativeness, the designation of union representatives and the validity of collective agreements, which would apply until the new method of measuring trade union audience takes full effect.

The draft provides for the National Collective Bargaining Commission to draw up a report on the application of the amended rules on representativeness for the new High Council for Social Dialogue. On this basis, the council would evaluate the reforms and consider further changes in areas such as: the minimum support required to enable unions to negotiate at sector and cross-industry level; development of the rules on the validity of collective agreements; and special provisions for unions representing particular categories of employee.

WORKING TIME

Since the current centre-right administration came to office in 2002, it has progressively dismantled the 35-hour normal working week introduced by its socialist predecessor. In 2003 and 2005, it increased the number of overtime hours that employees may work. Since president Sarkozy was elected in 2007, the process has intensified, with legislation to: abolish income tax on earnings from overtime work and cut the social security contributions levied on this part of workers' pay; and allow employees to trade in time-off entitlements for pay, thereby increasing their working time and earnings.

In December 2007, the government asked the social partners to negotiate at cross-industry level on ways of allowing company-level collective agreements to provide for weekly working time exceeding 35 hours. While retaining the 35-hour week as the starting point for calculating overtime, it sought to move from a uniform rule on normal weekly hours to a system where these are set in a decentralised way that suits individual companies and their employees. The government believes that the current regulatory framework for working time is so complex that it often prevents practical solutions that meet the wishes of employers and employees, while the rules on the duration of working time involve a series of "ceilings, thresholds, quotas and authorisations whose justification is often fragile or dated". The law has, the government claims, deprived sector- and company-level collective agreements of room to manoeuvre in this area.

The social partners' April 2008 common position dealt with these issues in a limited way, proposing an experimental scheme to allow company-level collective agreements to deviate from the overtime limits set by sectoral agreements. The government's draft legislation goes much further, aiming to give more room for company- or sector-level collective bargaining to regulate the duration and organisation of working time.

Overtime

The draft legislation would give collective agreements at company or sector level greater scope to set the number of overtime hours (ie beyond 35 hours per week) that employees can work each year, along with the pay premium applicable and other compensation for employees. The annual permissible overtime "contingent" is currently set by law (220 hours per employee per year), as is the minimum pay premium (of 10%-50%). Company- and sector-level agreements could also lay down the conditions under which the annual overtime contingent could be exceeded, the attached pay premium and other compensatory measures. It would no longer be necessary for the labour inspectorate to authorise overtime working beyond the contingent.

"Inclusive" working time arrangements

The proposed law would provide a new legal framework for "inclusive" annual working time agreements (conventions annuelles de forfait). These agreements, currently mainly applicable to managerial staff, assume that a certain amount of overtime is worked each year, calculated in hours or days, and that these extra hours are remunerated automatically as part of the employee's salary. The legislation would allow a more widespread use of these arrangements, based on company collective agreements (or sectoral agreements, if necessary), in order to meet companies' operational needs.

Where the agreements set a certain number of hours (including overtime) to be worked per year, the law would regulate the conditions for their use, the limits on the hours worked and individual and collective guarantees for employees. Where the agreements set a certain number of days (including overtime) to be worked per year, the law would also determine which staff categories may be covered by such arrangements, essentially those who have autonomy in organising their working time.

Variable working time

The draft law would give a greater role for company-level bargaining in organising working time in a flexible way over a period of up to a year, with weekly hours varying around an average in line with the needs of the company and employees, within the maximum limits set by law (48 hours per week and 10 hours per day). Such arrangements are currently possible, in certain circumstances, but the legislation would simplify the procedures involved and make them more flexible. Company agreements on variable hours would have to establish the thresholds beyond which overtime pay premia apply and establish a notice period for changes in employees' working hours (one week, unless otherwise agreed).

CONTROVERSY

The proposed liberalisation of the law on working time has proved highly controversial, with the CGT and CFDT trade union confederations accusing the government of "treachery". According to CGT, the government is seeking to take "ideological revenge" over the 35-hour week, while CFDT argues that the draft law opens the door to a "total deregulation" of working time. CGT and CFDT organised protest demonstrations on 17 June, although the FO, CFTC and CFE-CGC confederations, which did not sign the April "common position", did not support the action. They accuse CGT and CFDT of being partially responsible for the government's proposals, because they had agreed the common position's provisions on giving company-level agreements a greater role in determining overtime limits. The other unions see this as having given the government an excuse for its much more radical changes in this area.

The Medef employers' confederation has given its support for the draft law, which largely reflects its own proposals, although it opposes the idea of a 0.15% levy on employers to finance social dialogue. However, it would have preferred to have dealt with this matter through negotiations rather than legislation.

The left-wing parliamentary opposition is strongly opposed to the new legislation, which it claims means a return to "1919 and the 48-hour week".

Xavier Bertrand, the minister of labour, claims that the proposed law will bring "concrete and precise advances" and points out that greater working time flexibility will require a company-level agreement and cannot be imposed unilaterally by employers. He stated that "the statutory normal working week remains at 35 hours and overtime will be paid from the 36th hour, as it is today. France's statutory maximum working time remains unchanged, as do daily and weekly rest periods."

The prime minister, François Fillon, states that the government is responding to a "clear public demand" for more flexibility in working time, and to "loosen the vice" of the 35-hour week. He argues that the new rules will, on the basis of agreements, free companies from outdated constraints on working time. Responding to the complaints by CGT and CFDT that the government has gone beyond the provisions of the common position, Fillon said: "If we ask the social partners to negotiate on working time and they do not do so, or do so only in a marginal way, it is natural that the government and parliament take up their responsibilities."

This article is based on material provided by Christophe Boulay, European Employment Review correspondent for France.

European Employment Review 414 (EER 414) contents