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Article 8 of the Convention. Temporary exemptions. The Committee notes the information provided by the Government in reply to its previous comment on the application of section L.3132-5 of the Labour Code, which authorizes suspensions of the weekly rest period in certain industries dealing with perishable goods or which have to respond at certain times to an exceptional increase in workload. It notes the Government’s indications that the existence of the circumstances envisaged by this provision is very difficult to justify in the case of activities that are strictly commercial and non-industrial. The Committee also notes that employers that wish to suspend the weekly rest period under section L.3132-5 must immediately inform the labour inspector. As this consists of a procedure of information and not prior authorization, the Committee requests the Government to indicate the manner in which compliance is ensured in practice with the conditions set out in section L.3132-5 of the Labour Code for the application of exemptions to the normal weekly rest scheme. The Government is also requested to indicate the types of circumstances which may justify suspension of the weekly rest scheme in commercial establishments.

Part V of the report form. Application in practice. The Committee notes the information provided by the Government concerning the exemptions authorized to the normal weekly rest scheme, and particularly Sunday work. It notes that the Government reports an increase in unauthorized opening practices by food retail stores on Sunday afternoons and the measures adopted in this respect by the labour inspection services. The Committee also notes the ruling of 16 June 2010 by the Social Chamber of the Court of Cassation, recalling that the exemption from the right to Sunday rest envisaged in section L.3132-12 of the Labour Code is only granted to enterprises of which the principal activity is one of those enumerated in section R.3132-5 of the Labour Code and that consequently a company in which the principal activity is “do-it-yourself” cannot benefit from this exemption, as the activity is not contained in the schedule to section R.3132-5 of the Labour Code. Finally, the Committee notes that a new study by the Directorate of Research, Studies and Statistics (DARES) of the Ministry of Labour and Social Affairs on the practice of Sunday work will be published at the end of 2010. The Committee requests the Government to attach to its next report a copy of the study referred to above and of any other relevant publication. In general, the Government is requested to continue providing up-to-date information on the application of the Convention in practice, including statistics on the number of workers covered by the relevant legislation, extracts from the reports of the inspection services indicating the number of contraventions reported to the legal provisions on weekly rest and the measures taken to resolve them, information on the action taken by labour inspectors to ensure the veritable voluntary nature of Sunday work, copies of new collective agreements containing provisions on special weekly rest schemes and compensatory measures, etc.

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Article 7 of the Convention. Permanent exemptions – Sunday work. The Committee notes the detailed information provided by the Government in reply to its previous comments and the numerous attachments to its report, as well as the comments made by the General Confederation of Labour–Force Ouvrière (CGT–FO), received on 26 August 2010, and the Government’s reply to these comments, received on 15 November 2010. In its comments, the CGT–FO recalls the criticisms that it made in 2009 concerning Act No. 2008-3 of 3 January 2008 establishing an exemption to the Sunday rest rule for retail furniture stores, and Act No. 2009-974 of 10 August 2009, and its view that these extensions of exemptions from the principle of Sunday rest are opening the way to the generalization of Sunday work, as the many exceptions now granted no longer have an objective and imperative basis from the viewpoint of the general interest. The CGT–FO also emphasizes the dangers arising from this generalization of Sunday work in terms primarily of the family and social life of workers, but also the frequently precarious nature of jobs involving Sunday work.

I. The viewpoint of the workers concerned with regard to Sunday work

In its previous observation, the Committee requested the Government and the social partners to provide further information on a number of points. It expressed the wish to be provided with the results of any opinion surveys carried out among the workers concerned. The Committee notes that the Government attached to its report the findings of several surveys published in 2008 and 2009, and a table recapitulating the results. It notes that, according to the findings of the CSA poll of October 2008 entitled “The opinion of the French on Sunday work”, 50 per cent of the workers questioned indicated that they were ready to work on Sunday if they were paid double, while there were 49 per cent of negative opinions. The Committee also notes the findings of the survey “Sunday work: What do those who work on Sunday think?”, published in December 2008, according to which, in the view of 82 per cent of the employees questioned in the context of the study, the fact of working on Sunday primarily arises from a constraint related to the nature of their work or job. Moreover, the employees questioned indicated that a majority were personally in favour of greater legal flexibility so that more shops could open on Sunday (55 per cent) and the Bill to authorize Sunday work on a voluntary basis (66 per cent). In its comments, the CGT–FO questions the relevance of taking into account opinion surveys to assess the conformity of a legal measure with an ILO Convention. The Committee wishes to emphasize in this respect that this information is not intended to assess the conformity of the national legislation with the Convention as such, but rather to have available fuller information on the overall context surrounding the 2009 Act. The CGT–FO also recalls the difficulties involved in drawing reliable findings from opinion polls and refers to a study carried out in 2008 by the Centre de recherche pour l’étude et l’observation des conditions de vie (Crédoc), which was not mentioned by the Government in its report, according to which, although 52 per cent of those surveyed were in favour of the Sunday opening of shops, 61 per cent were opposed to working on a Sunday. The Committee observes that the polls published on the issue of Sunday work do not offer definitive conclusions on the views of the workers concerned. Indeed, there appears to be a dichotomy between the replies given by workers concerned with Sunday work and those of potential clients on a Sunday.

II. The voluntary nature of Sunday work

The Committee also requested information on the measures adopted to ensure the voluntary nature of Sunday work and the compensatory measures offered to the workers concerned. In this respect, it notes the Government’s indications that the reality of the voluntary nature of the work is ensured by several requirements and guarantees, both individual and collective, set out in the applicable legislative provisions. The Committee also notes that, according to the Government’s report, no guarantees of this type existed in the Labour Code before the adoption of the Act of 10 August 2009. The Committee further notes the Government’s indications that, in tourist towns and areas, the guarantees and compensatory measures available for employed persons are established by the provisions of branch and/or enterprise agreements. It notes that section 2 of Act No. 2009-974 requires the opening of negotiations with a view to the conclusion of an agreement on the measures to compensate Sunday work in branches that include shops and retail services, and in such shops or services where an agreement is not already in force. The Committee notes the information provided by the Government concerning the provisions respecting compensatory measures for Sunday work contained in the collective agreements concluded in sectors in which employees traditionally work on Sundays, and the conclusion of enterprise agreements which harmonized the system of compensatory measures applicable to persons employed by the enterprise, irrespective of the location of the shop or the type of exemption (tourist town or area, “areas of exceptional consumption” (PUCE), exemptions accorded by the Prefect), with most agreements providing for the doubling of remuneration and the granting of compensatory rest. Finally, the Committee notes the conclusion of the inter-branch agreement of 27 November 2009 on shops opening on Sunday in the Plan de campagne area, which is the largest commercial zone in France and concerning which there was a lively polemic before the adoption of the Act of 2009, as the retail stores were open there despite the legal prohibition that was then applicable. The Committee notes that this agreement envisages two days of weekly rest, one of which is determined in agreement with the employed person, but which may nevertheless be worked, and a wage supplement equivalent to a minimum of 100 per cent of the minimum interoccupational growth wage (SMIC).

The Committee notes that the CGT–FO, in its comments, emphasizes that the Labour Code, as amended by Act No. 2009-974, envisages a difference of treatment that is difficult to justify for workers employed in retail stores according to whether they are employed in a tourist town or in a PUCE, as the voluntary nature of Sunday work is only required in the latter case. The CGT–FO also considers that it is difficult to ensure the really voluntary nature of Sunday work, particularly during a period of high unemployment and in view of the economic dependence of employed persons on their employer. With regard to the compensatory measures for employed persons who do not benefit from Sunday rest, the CGT–FO considers that, also in this respect, the Act introduces inequality of treatment between employed persons. While persons employed in retail stores located in a PUCE benefit from remuneration that is at least double their normal pay, and equivalent compensatory time off, the same does not apply to those engaged in an establishment located in a tourist area. The CGT–FO accordingly asserts that, in view of these differences, the actors concerned are tempted to request classification of their areas as tourist areas, so that retail stores can benefit from the exemption for Sunday work with a minimum of constraints. It observes that all employed persons who do not benefit from these minimum compensatory measures set out in law can only avail themselves of the provisions of the various sectoral collective agreements or enterprise agreements, which is also a major source of inequality of treatment between employed persons. The CGT–FO also affirms that an enterprise agreement may derogate from the provisions of a branch collective agreement, even where it is less favourable to the employed person. Finally, according to the CGT–FO, since the entry into force of the Act of 10 August 2009, most of the measures taken in enterprises establishing compensatory measures for work on Sunday in reality arise out of unilateral decisions by the employer, validated by a referendum of the personnel, which does not offer sufficient guarantees of dialogue and avoids the traditional channels of collective bargaining.

In its reply to the CGT–FO’s comments, the Government emphasizes that the principle of the voluntary nature of the work applies to all employed persons working on Sunday under individual and temporary exemptions granted by Prefects. It adds that the principle of the voluntary nature of such work was not extended to cases of exemptions from the right to Sunday rest in so far as, in such cases, Sunday work is a structural component of the jobs involved, known at the time of recruitment. The Government also recalls the guarantees afforded by the law to ensure the voluntary nature of work by employed persons and observes that the labour inspection services have not up to now reported difficulties in the implementation of the legal requirements in this respect. With regard to the compensatory measures, the Government asserts in its reply that the Act of 10 August 2009 extended the scope of the exemptions for which compensatory measures for Sunday work are compulsory. These consist not only of exemptions in PUCEs, but also exemptions under section L.3132-20 of the Labour Code. In both of these cases, the employed persons benefit from either compensatory measures determined by collective agreement, or by law (the doubling of remuneration and compensatory rest) in the absence of an agreement.

III. Current situation in tourist areas and PUCEs

In its observation in 2009, the Committee also requested information on any developments concerning the definition of tourist areas and PUCEs. It notes that, according to the Government’s report, 570 territorial communities are registered as areas of touristic interest and 36 of them include one or more areas of exceptional consumption or permanent cultural activity, with the city of Paris having seven such areas. It also notes that five of these towns and areas have been registered as such since the entry into force of Act No. 2009-974, and that only around ten applications are under examination. The Committee notes that, according to the Directorate of Research, Studies and Statistics (DARES), around 50,000 retail stores with approximately 250,000 employed persons would potentially be concerned by Sunday work in tourist towns and areas. It also notes that, according to the Government’s report, 15 PUCEs were created in June 2010 following the adoption of the Act of 10 August 2009, with the number of stores concerned being estimated at 500 and the number of employed persons potentially concerned being evaluated at between 4,000 and 5,000.

In its comments, the CGT–FO indicates that the profiles of tourist areas are fairly difficult to understand, which is unacceptable as it leaves the door open for unjustified applications for classification as tourist areas. It considers that the definition of PUCEs also raises problems, as the elements which characterize a PUCE bear no relation to the requirement to meet primary necessities, but relate more closely to the achievement of profit objectives. Furthermore, the criteria set out in law, relating to customary Sunday consumption and the volume of customers, would appear, according to the CGT–FO, to respond to a desire to legalize practices that were previously illegal. Finally, it considers that, one year after the entry into force of the Act, PUCEs are appearing throughout France.

In reply to the CGT–FO’s comments, the Government indicates that no significant acceleration in applications for classification as tourist areas has been observed since the adoption of the Act, and that the 11 areas so classified obeyed the strict application of the provisions of the Labour Code. With regard to PUCEs, the Government indicates that up to now 24 PUCEs have been established, while 13 other applications, which did not fulfil the legal requirements, were refused. The Government adds that the number of employed persons potentially concerned by the exemptions in relation to PUCEs is under 15,000 and that the allegation of the generalization of Sunday work is therefore unfounded.

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The Committee takes due note of the voluminous information provided by the Government and the CGT–FO. It recalls the three basic principles around which the Convention is articulated, to which it referred in its previous observation: continuity (a period of weekly rest comprising at least 24 consecutive hours), regularity (weekly rest to be enjoyed in every period of seven days) and uniformity (weekly rest to be granted, wherever possible, simultaneously to all the persons concerned in an establishment and to coincide, wherever possible, with the traditional day of rest). It also recalls that Article 7 of the Convention only permits the application of special weekly rest schemes where the nature of the work, the nature of the service performed by the establishment, the size of the population to be served or the number of persons employed is such that the normal weekly rest scheme cannot be applied.

While noting that the Labour Code indeed establishes a period of weekly rest of at least 24 consecutive hours, as required by the Convention, and explicitly provides that “in the interest of the employed persons” the weekly rest period shall be granted on Sunday, and while noting that the Act of 10 August 2009 reaffirms in its title the principle of weekly rest, the Committee is bound to note the progressive extension of the exemptions to this principle authorized by the legislation. It accordingly observes that, according to a study published by DARES in October 2009, Sunday work concerned around 6.5 million employed persons, or 28 per cent of them, in 2008 and, of those, 2.8 million (or 12 per cent) habitually worked on Sunday, and that these statistical data are far from being negligible.

In any event, irrespective of the issue of the number of commercial establishments and workers concerned by these new exemptions, what remains to be demonstrated is that it was impossible to apply the normal weekly rest scheme, thereby necessitating recourse to Sunday work. Taking the example of the extension to retail furniture stores of the exemptions authorized by section L.3132-12 of the Labour Code, the Committee notes that this exemption was introduced by Act No. 2008-3 of 3 January 2008 with a view to the development of competition for the benefit of consumers. This wording clearly demonstrates that it is based on economic considerations, related to competition, and the wishes of consumers. Social considerations, namely the impact of the exemption on the workers concerned and their families, do not appear to have been taken into account, or at least not at the same level as economic factors. Moreover, while the opening of furniture stores may correspond to the wishes of consumers, it does not appear to amount to a necessity such that the application of the normal weekly rest scheme is impossible.

The legal measures adopted in favour of tourist areas and PUCEs give rise to similar comments from the Committee. Prior to the amendment made by the Act of 10 August 2009, the exemption for tourist areas was limited in time to the tourist period and in scope to retail stores offering the public goods and services intended to facilitate their stay or their relaxation or leisure activities. These conditions, which appeared to be such as to confine the exemption within the limits of its assigned objective, were set aside by the amendment of 10 August 2009. Moreover, the introduction of PUCEs openly responds to concerns of an economic nature, which nevertheless reflect the preferences of many consumers. It, however, had the effect of encompassing in the exemption all the stores located within the perimeter of large commercial centres without taking into account their size or activity, thereby going beyond the scope of the special schemes defined by the Convention on the basis of criteria related to the impossibility of complying with the normal scheme that it establishes, by reason of the nature of the work, the nature of the services performed by the establishment, the size of the population to be served or the number of persons employed (Article 7(1)).

The Committee clearly understands that, in the context of open competition, exacerbated as it is by the crisis, the member States of the ILO are led to endow labour rules with a certain flexibility to help enterprises cope. It nevertheless observes that, under the terms of the Convention, for an exemption to be made to the general weekly rest scheme, regard must be had to all proper social and economic considerations. It therefore requests the Government to continue reviewing, with the social partners, the impact in practice of the measures introduced by Act No. 2008-3 of 3 January 2008 and Act No. 2009-974 of 10 August 2009 having regard for both social and economic considerations. The Committee requests the Government to keep the Office informed of the outcome of this evaluation, and of any initiative that it may take in this respect.

Furthermore, the Committee is concerned at the information relating to the difference of treatment between persons employed in shops located in tourist areas and those who work (sometimes for the same company) in an establishment located in a PUCE in relation to the guarantees concerning the voluntary nature of Sunday work and the minimum compensatory measures established by law. It considers it desirable to ensure equivalent protection for persons employed in these two categories of establishments, particularly since the number of businesses benefiting from exemptions in tourist areas has been increased since the entry into force of the Act of 10 August 2009, and it requests the Government to provide fuller information on the measures that it could envisage adopting for this purpose, in consultation with the organizations of employers and workers concerned. The Committee notes the examples of sectoral collective agreements to which the Government refers in its report, but also notes the CGT–FO’s indications that enterprise agreements can derogate from sectoral agreements, even where their provisions are less favourable to the workers. It requests the Government to provide more detailed information on this point and, if this is indeed the case, to indicate the manner in which the existence of minimum guarantees is ensured for workers engaged on Sunday in terms of the voluntary nature of the work and compensatory measures. Finally, the Committee requests the Government to attach to its next report a copy of the report of the parliamentary committee to follow up the Act of 10 August 2009.

The Committee is raising other points in a request addressed directly to the Government.

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Articles 7 and 8 of the Convention. Permanent and temporary exemptions. Compensatory rest. The Committee notes that, under sections L.3132-5 and R.3132-1 of the Labour Code, the weekly rest of employees in certain industries that deal with perishable materials, or that have to respond at certain times to an exceptional increase in workload, may be suspended twice a month at most on condition that the number of such suspensions does not exceed six per year. The Committee also notes that hours of work thus performed on the day of weekly rest are treated as overtime and entered as overtime credit. Since the Convention provides for compensatory leave independent of any supplementary remuneration in cases of work executed on the weekly rest day, the Committee requests the Government to specify whether compensatory rest is indeed granted to workers employed in these conditions on the weekly day of rest, regardless of the amount of overtime calculated.

In addition, the Committee notes that, under sections L.3132-7, R.3132-3 and R.3132-4 of the Labour Code, in certain enterprises operating only part of the year or engaged in activities of a seasonal nature (including hotels, restaurants and catering and also construction work), the weekly rest may be deferred in part provided that workers enjoy at least two days of weekly rest per month, as far as possible on Sundays. While recalling Paragraph 3 of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which indicates that persons to whom special weekly rest schemes apply should not work for more than three weeks without receiving the rest periods to which they are entitled, the Committee requests the Government to indicate how it is ensured that workers of commercial enterprises falling within the scope of the above provisions of the Labour Code enjoy a minimum period of rest and leisure at reasonably short intervals.

Part V of the report form. Application in practice. The Committee notes the statistical information provided by the Government concerning authorized exemptions to the normal weekly rest scheme. It also notes the study of the Directorate on Research and Statistics of the Ministry of Labour and Social Affairs (DARES) published in January 2007 according to which there is a noticeable increase in atypical working hours, that is persons habitually – as contrasted to occasionally – working on Sundays, Saturdays or at night (for instance, 13 per cent of employees worked habitually on Sundays in 2005 as compared to 5 per cent in 1998 and only 3 per cent in 1991). The Committee would be grateful if the Government would provide up to date information on the practical application of the Convention, including for instance, statistics on the number of workers covered by relevant legislation, labour inspection results showing the number of offences observed and penalties imposed in connection with weekly rest, copies of collective agreements containing provisions on special weekly rest schemes, etc.

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Article 7 of the Convention. Permanent exemptions – Sunday work. The Committee notes the comments of the General Confederation of Labour–Force ouvrière (CGT–FO) received on 4 June, 20 August and 7 September 2009 concerning the application of the Convention.

The CGT–FO denounces the progressive extension of exemptions to weekly rest on Sunday, particularly in the commercial sector, and refers, on the one hand, to their incompatibility with the provisions of the Convention and, on the other, to the negative impact on workers by challenging a principle which has contributed to the division between private and working life since 1906. It observes that successive modifications of the Sunday rest scheme are opening the way to the generalization of Sunday work and the avoidance of consultations with workers’ organizations on the subject.

In its three communications, the CGT–FO emphasizes the non-compliance of the measures adopted successively in 2008 and 2009 with the Convention. It indicates that the previous extensions of exemptions from Sunday rest were reinforced by Act No. 2008-3 of 3 January 2008 and by the subsequent recodification of the Labour Code. The first reform added “retail furniture stores” to the list of establishments authorized to introduce exemptions from Sunday rest. The recodification resulted in an extension of the scope of exemptions through the introduction of the new concept of “public needs” and by providing that the list of establishments allowed to introduce exemptions from the Sunday rest shall be determined by regulations. Section L.3132-12 of the Labour Code provides in this respect that “certain establishments the operation or opening of which is rendered necessary by production constraints, the activities or needs of the public, shall be entitled to introduce exemptions to the Sunday rest rule and shall attribute rest days on a Sunday on a rota basis. A decree issued by the Council of State shall determine the categories of establishments concerned”.

As regards the second reform, Act No. 2009-974, adopted by Parliament on 22 July 2009, modified the scheme of exemptions from Sunday rest in tourist towns and areas (section L.3132-25) and replaced the previous restrictions relating to the areas concerned, the issuance of permits and the period concerned by a scheme under which the exemption is automatically acquired – permanent and generalized – thereby, de facto, resulting in the generalization of Sunday work in towns and areas classified as touristic by decision of the Prefect, at the proposal of the mayors concerned. The same trend for the extension of exemptions concerns retail outlets in towns with over 1 million inhabitants, through the introduction of the authorization of automatic opening on Sundays for a period of five years in “areas of exceptional consumption” (PUCE) characterized “by customary Sunday consumption, the significance of the volume of customers concerned and their distance from the said area”.

The CGT–FO considers that these exemptions, which only retain the voluntary nature of Sunday work and the compulsory compensatory benefits in the case of PUCE, are clearly far removed from those envisaged in the Convention and are based on criteria that are difficult to verify in practice, such as “the significance of the volume of customers concerned” and consumption “needs”. It underlines the weakness of statistical data to assess the impact of these exemptions. It further emphasizes the importance that is attached to the interpretation of the Convention to prevent trends that are contrary to its spirit.

In its reply, received on 4 September 2009, the Government recalls that the labour legislation fully complies with the requirement of Article 6(3) of the Convention by stipulating that, in the employees’ interest, the weekly rest is granted on Sunday (section L.3132-3 of the Labour Code) and indicates that it even exceeds the minimum standard prescribed by the Convention by providing for a weekly rest of 35 hours (section L.3132-2 of the Labour Code). Concerning the specific arguments put forward by the CGT–FO, the Government maintains that:

(i)    the re-codification of the text of the Labour Code did not aim at extending the permanent exemptions to the Sunday rest rule but simply to restate the criteria which had already been used for such exemptions and which are the constraints of the production and the needs of the public;

(ii)    the notion of needs of the public is not contrary to the provisions of Article 7 of the Convention since the “nature of the service performed by the establishment”, referred to in this Article, conveys the same idea. Besides, the Convention requires regard to be paid to all proper social and economic considerations, which may include the evolution of the needs of the public;

(iii)   Act No. 2008-3 of 3 January 2008 aims at promoting competition in the consumer’s interest. It was noted that due to changes in lifestyle, especially in big cities, there is a high demand for visiting retail furniture stores on weekends, hence the necessity to authorize these establishments to open on Sundays;

(iv)   no consultations were held prior to introducing the exemption with respect to retail furniture stores for reasons connected with the legislative process but also because the sector concerned is covered by a collective agreement that provides for specific compensations in case of Sunday work;

(v)   Act No. 2009-974 of 10 August 2009 was adopted following the recommendations of the Economic, Social and Environmental Council contained in two reports prepared in 2007. As these reports concluded, Sunday no longer constitutes only a day of collective rest but also a moment of cultural enjoyment or leisure and suitable for shopping either as a family or individually;

(vi)   the new exemption concerning the tourist towns and areas builds on an existing exemption simply extending its scope with a view to promoting tourism. It will affect, at the maximum, an estimated 150,000 persons to be compared with 6.5 million persons who are habitually or occasionally required to work on Sundays;

(vii)  the establishment of PUCE, or areas of exceptional consumption in urban areas of at least 1 million inhabitants, is meant to respond to existing practices of Sunday consumption. It will be subject to the authorization of the Prefect upon the prior request of the municipal council and on condition that a collective agreement fixes the compensations to be granted to the employees deprived of their Sunday rest. Approximately 20 areas are expected to be established affecting 15,000 persons. Authorizations are limited to five years which demonstrates the exceptional character of the new measures while a six-member parliamentary committee will present a report within a year as from the publication of the new legislation in the Official Gazette.

The Committee notes the observations of the CGT–FO and the Government’s reply which relate to legislative developments impacting on the application of Articles 6(3), 7(1) and (4), of the Convention. The Committee wishes to recall at the outset that for the determination of weekly rest the Convention is articulated around three basic principles, i.e. continuity (a period of weekly rest comprising at least 24 consecutive hours), regularity (weekly rest to be enjoyed in every period of seven days), and uniformity (weekly rest to be granted, wherever possible, simultaneously to all the persons concerned of an establishment and to coincide, wherever possible, with the traditional day of rest). These principles are reflected in sections of the Labour Code and there seems to be little disagreement between the CGT–FO and the Government that the principle of Sunday rest is a time-sanctioned and firmly grounded principle of the French labour legislation. It is commonly accepted that a certain flexibility is indispensable in applying this principle in view of the fact that in some cases there is an imperative need to maintain certain units of production operating around the clock, and in some others there is a manifest public interest in receiving certain services on Sunday. The Committee is therefore of the view that the different questions raised in the communications of the CGT–FO ultimately concern the exact scope and conditions of application of the permanent exemptions permitted under Article 7 of the Convention.

The Committee recalls that Article 7 permits special weekly rest schemes, including the granting of weekly rest on another weekday on a rotation basis when the nature of work, the nature of the service performed by the establishment, the size of the population to be served, or the number of persons employed is such that the normal weekly rest scheme provided for in Article 6 cannot be applied. In this connection, the Committee refers to paragraphs 110–123 of the 1964 General Survey on weekly rest in which it concluded that “an examination of the establishments covered by special schemes shows that they are governed by three main criteria, i.e. the need to cater for certain everyday consumer needs; the need to keep certain establishments operating; and the need to make special weekly rest arrangements for particular places or districts”. More concretely, the Committee referred to: (i) first, establishments engaged in work which cannot be interrupted owing to the nature of the needs for which they cater or the harm which any stoppage would cause to the public interest, including industries, businesses and services indispensable to the daily maintenance of health, food supplies, safety and essential consumer needs generally, such as hospitals and similar establishments, hotels, restaurants, certain wholesale and retail commercial establishments, fire-fighting services, newspaper, information and entertainment establishments, public utilities (water, gas and electricity) and transport; (ii) secondly, industries which for technical reasons must operate continuously if they are to maintain their efficiency, including manufacture of foodstuffs for immediate consumption, occupations in which any interruption of the work would entail the loss or deterioration of the raw materials, or industries using certain specialized techniques (ovens, blast furnaces, gas works, etc.); and (iii) thirdly, establishments which operate only for part of the year or which depend on natural energy or other variable circumstances (e.g. establishments using water or wind as their sole motive power, occupations which are carried on in the open air and in which work may be held up by bad weather), including certain establishments in bathing and tourist resorts or watering places.

More specifically, in so far as retailing is concerned, the Committee noted that this is one of the branches of employment most frequently subjected to special weekly rest schemes, and that some countries specified the items which may be sold on the compulsory weekly rest day. It also noted that this had the advantage of making it clear that exceptions to the normal weekly rest schemes were warranted only when they met a very definite need (General Survey of 1964 on weekly rest, paragraph 113). More recently, in its 1984 General Survey on working time, the Committee indicated that in certain sectors such as commerce there is a trend which could lead to the establishment of special schemes that do not necessarily correspond to the standards prescribed by the Convention (paragraph 166).

The Committee recalls, in this regard, that it has raised similar questions in the direct requests it addressed in 2005 and 2008 concerning the application of the Convention in New Caledonia with respect to exemption of hardware and do-it-yourself stores. In these comments, the Committee also referred to relevant jurisprudence, including 19 decisions of the Administrative Court of Paris rendered in November 1993 and a decision of the Conseil d’Etat of July 1983, which ruled that do-it-yourself stores did not meet the conditions for granting an exception to the Sunday rest rule. In this connection, the Committee notes the existence of recent court decisions ordering on pain of fine retail stores, in particular hardware and do-it-yourself stores, to remain closed on Sundays.

The Committee understands that the question of Sunday work has been the subject of serious controversy in France which has led the Parliament to defer on several occasions the debate on the topic prior to the adoption of Act
No. 2009-974. It also understands that this debate is stirred principally by the evolution in people’s preferences and patterns of consumption. The Committee further notes the regret expressed by the CGT–FO concerning the lack of statistical data on these situations and on the probable impact of the reforms. There are also significant divergencies between the fears that it expresses concerning the generalization of Sunday work and the Government’s estimates, which indicate that some 15,000 persons are concerned in tourist areas, compared to 6.5 million persons who are normally affected by Sunday work. An accurate assessment of the situation is in this context a prerequisite to evaluating the impact of the legislative measures. The Committee would therefore appreciate it if the Government and the social partners would provide supplementary documented information on the following: the results of any opinion surveys carried out among the workers concerned; the measures taken to ensure the voluntary character of Sunday work; the compensatory measures taken in favour of employees working on Sundays in application of the new legislative provisions, including copies of relevant collective agreements; any developments concerning the delimitation of tourist areas, the determination of tourist towns and the establishment of PUCE; copy of official studies that may have been conducted following the legislative developments of 2008 and 2009 or new reports that may have been published by the Economic, Social and Environmental Council on this matter; copy of the report which will be prepared by the parliamentary committee referred to in Act No. 2009-974.

The Committee would also be grateful to the Government for replying to the following additional questions: (i) did Act No. 2009-974 reflect the proposals contained in the 2007 report of the Economic, Social and Environmental Council? (ii) were any consultations held with the social partners during the period from 2007 when the report was prepared and July 2009 when the Act was adopted, and if so, what was the nature and outcome of these consultations? (iii) what are the consultation procedures used when legislative measures touch on labour questions? (iv) what was the special procedure used by the Government in this case and why was it chosen?

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 7, paragraph 3, and Article 8, paragraph 2, of the Convention. Permanent and temporary exemptions. The Committee notes the information provided in the Government’s report on the legal provisions concerning the consultation of workers’ organizations with regard to special weekly rest schemes and temporary exceptions from the weekly rest schemes, in particular with regard to tourist, thermal and cultural resorts (section L.221-8-1 of the Labour Code) and the possibility to abolish the weekly Sunday rest in retail establishments on five Sundays every year (section L.221-19 of the Labour Code). In each instance, the public authority has to hear in accordance with section L.221-6 of the Labour Code the opinion (“avis”) of workers’ and employers’ organizations, wherever they exist.

A previous observation made by the French Democratic Confederation of Labour (CFDT) expressed doubt on the compatibility between “avis” in the French legislation and “consultation” under the Convention. It appears from the wording and the intention of the Convention that consultation should be distinguished from mere “information” (CEACR, 2000, General Survey on tripartite consultation, paragraph 29). The consultations required under the terms of Conventions are intended, rather than leading to an agreement, to assist the competent authority in taking a decision. “Avis” goes beyond mere “information”. As long as it is interpreted in the way that the competent authority has the obligation to take the opinion of workers’ and employers’ organizations into serious consideration, it appears to be in line with the meaning of consultation under the Convention.

Concerning its previous request on “full information on the manner in which consultations are carried out with workers’ representatives”, the Committee wishes to obtain information on the practical and factual, and not only on the legal application of the Convention. The Committee therefore requests the Government to provide it with information in this regard, in line with Part V of the report form, in particular concerning consultation of workers’ representatives as requested in Article 7, paragraph 4, and Article 8, paragraph 2, of the Convention.

Moreover, the Committee notes the preparation of draft legislation with a view to reforming the exemptions to Sunday rest, which was submitted to the Presidency of the National Assembly on 24 April 2008. It requests the Government to provide all relevant information concerning the process of adoption of that text and the measures taken to ensure the full application of the provisions of the Convention setting the conditions for exemptions to the normal weekly rest scheme.

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Article 7, paragraph 3, and Article 8, paragraph 2, of the Convention. The Committee notes the information on the legal provisions concerning the consultation of workers’ organizations with regard to special weekly rest schemes and temporary exceptions from the weekly rest schemes, in particular with regard to tourist, thermal and cultural resorts (section L.221-8-1 of the Labour Code) and the possibility to abolish the weekly Sunday rest in retail establishments on five Sundays every year (section L.221-19 of the Labour Code). In each instance, the public authority has to hear in accordance with section L.221-6 of the Labour Code the opinion ("avis") of workers’ and employers’ organizations, wherever they exist.

A previous observation made by the French Democratic Confederation of Labour (CFDT) expressed doubt on the compatibility between "avis" in the French legislation and "consultation" under the Convention. It appears from the wording and the intention of the Convention that consultation should be distinguished from mere "information" (CEACR, 2000, General Survey on tripartite consultation, paragraph 29). The consultations required under the terms of Conventions are intended, rather than leading to an agreement, to assist the competent authority in taking a decision. "Avis" goes beyond mere "information". As long as it is interpreted in the way that the competent authority has the obligation to take the opinion of workers’ and employers’ organizations into serious consideration, it appears to be in line with the meaning of consultation under the Convention.

Concerning its previous request on "full information on the manner in which consultations are carried out with workers’ representatives", the Committee wished to obtain information on the practical and factual, and not only on the legal application of the Convention. The Committee therefore requests the Government to provide it with information in this regard, in line with Part V of the report form, in particular concerning consultation of workers’ representatives as requested in Article 7, paragraph 4, and Article 8, paragraph 2, of the Convention.

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The Committee notes the information communicated by the Government in its latest report, and refers once again to the observations made by the French Democratic Confederation of Labour (CFDT) concerning consultation of workers’ representatives on derogations granted with regard to Sunday or weekly rest. The Committee notes that Act No. 2000-37 of 19 January 2000 does not modify section L.221-8-1 of the Labour Code, which allows weekly rest by rotation in tourist, thermal or cultural resorts, or section L.221-19 of the Labour Code, according to which the weekly Sunday rest may be abolished (with compensatory rest) in retail establishments on five Sundays every year.

The Committee, referring to its previous comments regarding Article 6, paragraph 3, and Articles 7 and 8, of the Convention, requests the Government once again to provide in its next report full information on the manner in which consultations are carried out with workers’ representatives and on any difficulties encountered in the practical application of these provisions (including any court rulings constituting jurisprudence).

The Committee notes with interest that section L.221-16-1 of the Labour Code, as established by Act No. 2000-37 of 19 January 2000, restored a provision that had existed in section R.262-1-1 of the Labour Code (Decree of 6 August 1992), which had been ruled illegal and inapplicable by the Council of State in its Ruling of 21 October 1994. The labour inspector is thus enabled once again to take appropriate measures to stop illegal employment of workers in contravention of Sunday and weekly rest provisions, in accordance with Article 10 of the Convention.

The Committee also refers the Government to its observations on Convention No. 14.

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Referring also to its previous comments, the Committee notes the information supplied by the Government in its report and the comments made by the French Democratic Confederation of Labour (CFDT).

The Committee notes that five-year Act No. 93-1313 of 20 December 1993 on work, employment and occupational training has extended the field of individual and temporary derogations to Sunday rest which prefects may grant to commercial establishments. Under section L221.8.1, derogations may be granted by the prefect when they respond to specific public needs, in municipalities or zones which are particularly busy because of their tourist, thermal resort or cultural nature. The procedure for granting a derogation requires, particularly, compulsory consultation of the municipal council, the Chamber of Commerce and Industry and the trade unions of the employers and employees affected in the municipality. The Committee also notes that under section L221-19 of the Labour Code, as amended by Act No. 93-1313 mentioned above, the weekly Sunday rest may be abolished (with compensatory rest) in retail establishments five Sundays a year by order of the mayor issued after an opinion from the employers' and workers' organizations concerned.

With reference to Article 6, paragraph 3, 7 and 8, of the Convention, the Committee requests the Government to supply information on the manner in which consultation of workers' representatives is guaranteed and on any difficulties encountered in the application in practice of the above-mentioned arrangements (including any court decisions constituting precedents).

The Committee notes that section R262-1-1 (Decree of 6 August 1992) which allows the labour inspector to apply to the president of the Court of Higher Instance (Tribunal de grande instance) in order to authorize any measure to put a stop to illegal work of employees violating weekly Sunday rest (mentioned by the Government in its report) has been declared illegal by the Council of State (Orders of 21 October 1994). The Committee requests the Government to indicate the measures taken or envisaged to ensure proper application of the rules or provisions relating to weekly rest, in accordance with Article 10 of the Convention.

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The Committee noted in its previous direct request the comments made by the French Democratic Confederation of Labour (CFDT) concerning observance of the Act respecting Sunday shop opening and illegal constraints placed upon employees. It now notes from the Government's report that a draft law relating to the weekly Sunday rest day for workers and the opening of shops on Sunday was examined by the Economic and Social Council on 14 and 15 May 1991. The Committee also notes that the draft includes provisions which (1) reaffirm the prohibition of work in shops on Sundays; (2) enlarge the list of establishments which may rotate the weekly rest day amongst their personnel; (3) permit local authorities in tourist areas to make temporary exceptions for retail groceries and tourist services; (4) increase to four times per year the number of exceptions per retail establishment to the usual Sunday weekly rest which may be made by local authorities; and (5) increase the penalties for failure to respect regulations concerning the Sunday rest.

The Committee recalls that the obligations accepted under Article 3 of the Convention cover, inter alia, establishments providing personal services and places of public entertainment. The Committee hopes the Government will continue to provide information on developments in the application of the Convention, including consultations with representative employers' and workers' organisations where special weekly rest schemes are considered, either in the Economic and Social Council or elsewhere (cf. Article 7(4)).

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The Committee notes the comments made by the French Democratic Confederation of Labour (CFDT), according to which there are many cases in which the Act respecting Sunday shop opening is not respected. The CFDT states that in this connection employees have been subject to illegal constraints and that many court proceedings have been held. Draft legislation that is currently being formulated could, according to the CFDT, enable the various types of authorisation and the procedures for collective bargaining in this field to be better regulated.

The Committee would be grateful if the Government would supply further information concerning the manner in which the Convention is applied, including the texts of any judicial decisions handed down in this connection and of any regulations or other measures that it considers appropriate in the light of the CFDT's comments (see Parts III, IV and V of the report form).

The Government is asked to report in detail for the period ending 30 June 1991.