France: Reforming union representativeness

France's economic and social council has recently made proposals on reforming the rules on trade union representativeness, which will feed into the government's continued efforts to reform social dialogue.

The reform of social dialogue, trade union "representativeness" and collective bargaining has been on the agenda for several years, with the most recent developments contained in legislation to modernise social dialogue, adopted by parliament in January 2007 (this issue, p.6). Other key developments include a joint position concluded by the social partners on "the ways and means of intensifying social dialogue" in July 2001 (EER 331 p.6), followed by legislation on vocational training and social dialogue in May 2004 that introduced a new "majority" principle (EER 366 p.27) into collective bargaining. This legislation seeks to ensure that collective agreements are supported - or, at least, not opposed - by a majority of "representative" trade unions (see box 1) representing employees in a company or sector. A review of this legislation should be completed by the end of 2007.

In 2005, the government commissioned Raphaël Hadas-Lebel, a member of the supreme administrative court, to produce a report on union representativeness and financing, which was submitted in May 2006 (France: Renewing social dialogue). It addressed the following: the criteria that define union representativeness; making collective agreements more representative; promoting social dialogue in small and medium-sized enterprises (SMEs); and making union finances more transparent. The government asked the economic and social council (Conseil économique et social (CES)) - a consultative body on which the social partners and other interest groups are represented, which issues recommendations to the authorities and participates in the legislative process on Bills to be submitted to parliament - to give its opinion on the issues raised by the Hadas-Lebel report. In November 2006, the CES voted to adopt an opinion, entitled "Consolidating social dialogue" (Consolider le dialogue social)¹, which sets out proposals to reform the rules on union representativeness.

Union representativeness

One of the most fundamental reforms proposed by the CES is the removal of the absolute right held by the five representative trade union confederations to negotiate with employers (the "presumption of irrefutable representativeness"), which was granted by a government decree in March 1966. In its place, the CES proposes introducing "national representation" (répresentation nationale) status to union organisations, based on the results of workplace elections.

The CES proposals state that all legally constituted and independent trade unions would be able to put forward candidates in these elections, which would give unions that have emerged in recent years a greater chance of achieving representative status and winning public funding. Ensuring electoral participation is crucial because the CES wants the organisations representing employees to reflect their workplaces as closely as possible. It has, therefore, outlined ways of increasing participation, including the suggestion that employees should be able to vote electronically where possible.

The CES maintains that the intervals between elections should be sufficient "to ensure the long-term legitimacy of the trade union organisations" - possibly every five years. If elections were to happen too often, the CES believes that they could be disruptive, leading to a semi-permanent election campaign at the enterprise, which would prevent representatives from carrying out their normal duties effectively. Regarding the threshold for representativeness, the CES suggests fixing it, as a general rule, at a 5% share of the vote or above. For managerial staff, separate arrangements - to be agreed with the CFE-CFC managerial and professional union confederation - would apply.

Further, the CES suggests that the other current representativeness criteria need updating (see box 1). For example, it proposes replacing the statement "patriotic attitude during the [Second World War] Occupation" with "respect for republican values".

The criteria defining the representativeness of employers' organisations should also be re-examined, according to the CES. Currently, there are three employers' bodies that operate at national multi-sector level - Medef (the main employers' confederation); CGPME (representing SMEs); and UPA (representing employers in the craft sector). As appropriate, they may be joined by the organisations representing agricultural employers (FNSEA) or the liberal professions (law, health, etc) (UNAPL). They derive their representativeness from the scope of their activities and their membership among companies. Their participation in key national consultative or negotiating bodies rests on decisions taken by the authorities and by the organisations among themselves - not on the basis of the results of elections. The CES also notes that other important groups, such as the federations representing employers in the "social economy" (cooperatives, associations, etc) do not usually participate in any of these forums.

Validity of collective agreements

The May 2004 legislation significantly changed the framework for the conclusion and extension of collective agreements. Previously, an accord signed by even a single representative union was valid. Now, it essentially requires majority approval or the absence of opposition of the majority of the unions concerned, or the unions representing the majority of employees. The CES points out that, in practice, the emphasis is on the latter approach - taking the form of a "tacit agreement". In the CES's opinion, the possibilities of the new legislation have not been fully used, with no development of the "majority opposition" principle towards a greater stress on "majority engagement".

The CES stresses that crucial issues, such as pay, working time and working conditions, should be regulated by agreements (or extended agreements) that are perceived to be "legitimate" by the affected employees. It therefore proposes developing a model of true "majority" agreements. In the meantime, it has suggested that interim arrangements should apply. Under these, an agreement would have to be approved by one or more trade union organisations representing the majority of employees, not just a majority of the unions concerned.

Ultimately, the CES is keen to stress the positive aspects of social dialogue, embodied by agreements that have been adopted by a majority of the parties concerned. This contrasts with what it views as a negative message that is portrayed by majority opposition, which, it maintains, principally serves to exacerbate differences. The CES also acknowledges, however, that the present system does not prevent agreements from being reached.

As for enterprises without union delegates, the CES proposes that agreements may be concluded after consultation with the employees concerned or validation by the joint committees operating in the sector.

Social dialogue in SMEs

The CES highlights the fact that some 60% of employees work in companies with fewer than 250 employees - nearly half of them in enterprises with fewer than 50 employees. These workers often do not have representation through either elected representatives or union delegates. This, the CES maintains, leads to a lack of social dialogue opportunities (France: Enterprise-level social dialogue), which is particularly acute in the smallest enterprises. According to the CES, this situation is primarily due to low unionisation levels - partly arising from a lack of interest among employees, combined with a misunderstanding of the unions' roles and concern that union membership may lead to personal problems at the hands of anti-union employers.

The CES therefore strongly recommends finding innovative and practical methods for developing social dialogue at SMEs. Among other measures, it proposes that elected employee representatives should be able to negotiate collective agreements with the employer at companies below a certain size where there are no union delegates. For companies with no elected representatives, the CES suggests using the expertise of elected representatives from a comparable enterprise - one belonging to the same sector, selected according to a set of specific and relevant criteria and whose representatives, nominated by the unions, would receive appropriate training. Another proposal is for the establishment of "shared" consultation and negotiation bodies of employers and employees from a number of small enterprises.

Greater transparency regarding union finances

The CES refers to the complexity surrounding union structures and their multiple sources of finance, and it stresses the need for more transparency. It suggests developing a model of public funding for unions, similar to that provided for political parties. According to the CES proposals, members' subscriptions would continue to fund grass-roots activities (although the CES proposes changes to their tax treatment), but unions would also receive a public subsidy in exchange for functions they carry out in the public interest, such as participating in consultation bodies. Additionally, sector-level bodies could be allocated sums to finance collective bargaining, possibly following the example of an accord reached in 2001 in the craft sector that provides for an employers' contribution of 0.15% of the wages bill to fund sectoral bargaining.

Finally, the CES recommends that union organisations at every level should publish their annual accounts.

Heated debate

Although the members of the CES voted to adopt the opinion by a large majority (132 in favour, with 57 against and eight abstentions), the social partner organisations were divided among themselves and heated debates were reported. On the employers' side, Medef and the CGPME voted against the document, as did FO, CFTC and CFE-CGC on the unions' side.

The CFDT and the CGT welcomed the proposals - in particular, the recognition of representativeness on the basis of elections. These are the largest union confederations and generally do well in workplace elections (France: 2002 works council election results), and they anticipate maintaining their strong positions. Of the employers' bodies, only UPA sided with the CGT and CFDT, and was joined by CES members from smaller trade unions that are not considered representative at the moment but that believe they could benefit from the proposed new rules (Solidaires, Unsa and FSU). In contrast, the smaller union confederations that currently hold representative status feared that they could be supplanted by newer organisations.

The other main point of contention was the proposed move towards introducing majority agreements, effectively reversing the existing right of opposition. Medef was concerned that the new arrangements would result in a "radicalisation" of behaviour and a complete blockage of collective bargaining. Another concern was that representativeness accorded as a result of elections could widen the distance between the parties and, in the long run, make it harder to reach agreement - the CFTC warned of system paralysis. At the same time, the CFE-CGC expressed its belief that implementing the CES's proposals would lead to a further decline in union membership, which is already extremely low in France. Despite a high number of unions, only 8.2% of the active population are unionised - concentrated in the public sector - with an even lower rate in the private sector (5.2%). This compares with, for example, around 26% in the UK.

Future developments

Initially, the proposed new arrangements would apply to the private sector, but the CES recommends applying the principles to the public sector, which, it claims, suffers from inadequate social dialogue.

Many questions, however, remain unanswered; for instance, how and when the proposed representativeness elections would be held. Further, the general secretaries of the CFDT and the CGT had hoped that the recommendations would be integrated in the new law on modernising the social dialogue during the parliamentary process, but MPs rejected a Socialist party amendment concerning union representativeness. In response to the CES opinion, the prime minister exhorted the employment ministers, Gérard Larcher and Jean-Louis Borloo, to work with the social partners on drawing up draft legislation modifying the rules on representativeness.

1. Consolider le dialogue social (PDF format, 419K) (on the Economic and Social Council website).

European Employment Review 397 (EER 397): contents