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The Committee notes the observations of the French Democratic Confederation of Labour (CFDT), received on 6 September 2021, and the Government’s response, received on 7 October 2021. It also notes the observations of the French Confederation of Management – General Confederation of Professional and Managerial Employees (CFE-CGC) provided with the Government’s report. The Committee notes that the observations concern in particular the application of Article 10 of the Convention.

Follow-up on the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

Article 4 of the Convention. Valid reason for termination based on the operational requirements of the undertaking, establishment or service. The Committee notes the Government’s indications that Act No. 2016-1088 of 8 August 2016 on work, the modernization of social dialogue and the safeguarding of career progression clarifies the definition of economic grounds for termination of employment, in order to make the applicable rules clearer, in particular in small and medium-sized enterprises. The Government indicates that the definition of termination of employment on economic grounds includes the grounds contained in the case law of the Court of Cassation, namely the cessation of the enterprise’s activity and the restructuring of the enterprise in order to safeguard its competitiveness. In addition, the difficulties that can justify termination of employment on economic grounds are defined taking into account elements from case law, including a drop in orders or sales, operating losses, a significant deterioration in cash flow or any evidence of such difficulties. In its report, approved by the Governing Body in March 2022, the tripartite committee set up to examine the representation alleging non-observance by France of the Convention observed that the Convention and Recommendation do not define the concept of operational requirements of the enterprise and that the supervisory bodies have illustrated the concept on the basis of specific elements (paragraph 54 of the report). The tripartite committee considered that determining whether the concept of operational requirements has been respected within the meaning of Article 4 of the Convention is a matter for the national courts. The Committee requests the Government to provide examples of judicial decisions on the effective application of Article 4 of the Convention, particularly decisions concerning dismissals on the grounds of the operational needs of the enterprise. In particular, it requests the Government to communicate the criteria used by the judges in these decisions.
Articles 8 and 9. Reasonable period of time. Judicial review of the grounds for dismissal. The Committee notes that, according to section L. 2254-2 of the Labour Code, a “dismissal is based on specific grounds that constitute real and serious justification”. It notes that the initial reference to the obligation to state, in the letter of dismissal, the specific grounds on which the dismissal is based has been removed (but not the obligation itself, as section L. 2254-2 (V) refers to section L. 1232-6). In paragraph 58 of its report, the tripartite committee considered that, beyond the explicit reference in section L. 2254-2 of the Labour Code to the real and serious nature of the termination of employment on the grounds of an employee’s refusal to have his or her employment contract amended as a result of the conclusion of a collective performance agreement, the judge must be able to continue to conduct a genuine judicial review. The tripartite committee indeed considers that the provisions of section L. 2254-2 merely recall the requirement that any termination of employment must be based on real and serious justification. It is for the judge to determine as part of the judicial proceedings on termination based on section L. 2254-2 whether a valid reason exists within the meaning of Article 4 of the Convention, that is, whether the reason for the termination is based on “the operational requirements of the undertaking, establishment or service”, it having been established that, during the judicial examination, the burden of proof must not rest on the employee alone. Referring to Order No. 017-1387 of 22 September 2017 concerning the predictability and security of employment relationships, the Government indicates that the time limits for appeals against the termination of an employment contract have been harmonized at one year. The Committee recalls that all parties concerned should seek to avert or minimize as far as possible termination of employment for reasons of an economic, technological, structural or similar nature, without prejudice to the efficient operation of the undertaking, establishment or service, and to mitigate the adverse effects of any termination of employment for these reasons on the worker or workers concerned (Paragraph 19(1) of the Termination of Employment Recommendation, 1982 (No. 166). The Committee requests the Government to provide information on the results of judicial reviews of dismissals based on section L. 2254-2, and on the impact of the change in the time limits for appeals.
Article 10. Payment of adequate compensation or such other relief as may be deemed appropriate. The Committee notes that, in its observations, the CFDT refers to the scale setting limits for the compensation of employees who have been dismissed without real and serious justification and refers to the incompatibility of the limits set with the principle of adequate compensation, as set out in Article 10 of the Convention. Indeed, the CFDT indicates that the compensation of the damage as provided for by this scale does not always make it possible to adequately compensate the employee for the unjustified termination of his or her employment, in particular when the damage is very significant and the employee’s length of service in the enterprise is short. In its observations, the CFE-CGC states that it considers this scale to be in breach of Articles 8 and 10 of the Convention. The Government points out that the scale mechanism provided for in Ordinance No. 2017-1387 and ratified by Act No. 2018-217 was submitted to the Constitutional Council, which declared section L. 1235-3 of the Labour Code establishing the compensation scale to be in conformity with the Constitution. The Government specifies that the scale system is a compulsory framework of compensation that the judge must use when declaring an employee’s dismissal to be without real and serious justification. In no case does the scale system allow the employer to terminate employment without justification, as the amount set by the scale and proposed by the judge is the compensation for the damages suffered by the employee. Currently, when the employee’s dismissal has no real and serious justification, the judge may order the reinstatement of the employee if neither party opposes it. If the employer or the employee refuse the reinstatement, the judge awards compensation. The judge may take into account elements related to the employee’s particular situation (age, health, family situation, etc.) when setting the amount of compensation in compliance with the minimum and maximum limits of the scale. In its report, the tripartite committee considered – aside from cases of termination concerning a fundamental right, to which the principle of full compensation applies, and irrespective of the compensation for separate damage – that the compatibility of a scale, and the related upper limit, with Article 10 of the Convention depends on whether sufficient protection is ensured for persons whose employment has been unfairly terminated and, in all cases, whether adequate compensation is paid (paragraph 80 of the report). Under these circumstances, the tripartite committee invited the Government to examine at regular intervals, in consultation with the social partners, the compensation procedures provided for in section L. 1235-3, to ensure that in all cases the parameters for compensation provided for in the scale ensure adequate compensation for damage suffered as a result of the unfair termination of employment (paragraph 81 of the report). The Committee notes the Court of Cassation rulings of 11 May 2022 (Appeal No. 21-15.247 (Ruling No. 1), and Appeal No. 21-14.490 (Ruling No. 2)). The Court holds that the provisions of section L. 1235-3 of the Labour Code are compatible with the provisions of Article 10 of the Convention. It notes that the scale takes into account the gravity of the employer’s misconduct by excluding from its scope of application terminations of employment that are set aside for one of the reasons listed in section L. 1235-3-1 of the Labour Code. The Court noted that the term “adequate” in Article 10 of the Convention means that compensation for unjustified termination of employment must be sufficiently dissuasive to avoid unjustified termination of employment and must reasonably allow compensation for the unjustified loss of employment. It affirmed that the provisions of section L. 1235-3 of the Labour Code, which provide for compensation ranging between minimum and maximum amounts, varying according to the amount of the employee’s monthly salary and length of service, reasonably allow for compensation for unjustified loss of employment. The Committee also notes that, according to the European Committee of Social Rights (ECSR) (Complaints Nos 160/2018 and 171/2018, decision published on 26 September 2022) the upper limits set by section L.1235-3 of the Labour Code are not sufficiently high to provide adequate reparation for the damage suffered by the victim and be dissuasive for the employer. The ECSR also notes that the upper limit of the compensation scale does not allow for higher compensation to be awarded on the basis of the personal and individual situation of the worker, as the courts can only order compensation for unjustified dismissal within the lower and upper limits of the scale, unless the application of section L. 1235-3 of the Labour Code is excluded. The ECSR is of the opinion that the courts have a narrow margin of manoeuvre in deciding the case on its merits by considering individual circumstances of unjustified dismissals. For this reason, the real damage suffered by the worker in question linked to the individual characteristics of the case may be neglected and therefore, the worker may not be fully compensated. The Committee notes the December 2021 report of the Committee for the Evaluation of the Orders of 22 September 2017, mentioning that in the sample of appellate court decisions studied by the Committee, the amount of compensation paid is between the upper and lower limits of the scale in 90 per cent of the cases for dismissals after the application of the scale, whereas this was the case for 44 per cent before the reform. The Committee requests the Government to provide information on the review, in consultation with the social partners, of the compensation procedures provided for in section L. 1235-3, so as to ensure that the parameters of compensation provided for in the scale allow, in all cases, adequate compensation for the damages suffered as a result of unfair dismissal.
Application of the Convention in practice. The Committee notes the observations of the CFDT on the legislative developments in the area of legislative developments in relation to the laws on termination of employment on economic grounds, in particular with regard to the need to have statistical data on the application of the Convention in practice. The Committee requests the Government to continue to provide any general information on how the Convention is applied in practice, including, for example, available statistics on the activities of the appeal bodies (such as the number of appeals against dismissal measures, the outcome of such appeals, the nature of the reparations granted, the average length of time taken for the appeal to be decided), and the number of dismissals on economic or similar grounds.

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The Committee notes the detailed information contained in the Government’s report for the period ending August 2016. The Committee notes that, at its 329th Session (March 2017), the Governing Body declared receivable a representation alleging non-observance of the Convention by France, made under article 24 of the ILO Constitution by the General Confederation of Labour–Force ouvrière (CGT–FO) and the General Confederation of Labour (CGT). The Committee will therefore take up its examination under article 22 of the ILO Constitution once again when the Governing Body procedure has been concluded.

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The Committee notes the information contained in the Government’s report for the period ending in September 2011. The Government indicates that the labour legislation has remained unchanged since its previous report in 2008 and mentions the most significant case law of the Court of Cassation relating to the matters covered by the Convention (Judgment No. 856 of 14 April 2010 indicating that reinstatement of a worker whose employment has been terminated without real and serious justification cannot be imposed on the parties if one of the parties oppose reinstatement). The Committee invites the Government to continue providing relevant information on the application of the Convention. It also invites the Government to include information on the activities of the appeal bodies, including the labour courts, and also on the number of terminations on economic or similar grounds (Part V of the report form).

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Article 24 of the ILO Constitution. Follow-up of a representation. In the report received in October 2008, the Government indicates that, taking into account the recommendations of the ILO Governing Body of 14 November 2007, it passed Act No. 2008-596 of 25 June 2008 repealing provisions relating to the “Contract for New Employment” (CNE). The Act implements a national tripartite agreement. The CNEs in force at the time of the publication of the Act were reclassified as contracts of unlimited duration. Furthermore, the Court of Cassation referring to the recommendations of the tripartite committee, in a ruling handed down on 1 July 2008 by its social chamber, held that, under the terms of Article 2, paragraph 2(b), of the Convention, the CNE is not one of the categories of contracts that can be excluded from the protection of the Convention. The Court of Cassation also held that the CNE did not comply with the requirements of the Convention because it denied workers the right to defend themselves against allegations made prior to termination relating to conduct or performance (Article 7); it permitted termination without a valid reason (Article 4); and it placed the burden exclusively on a worker to prove an invalid reason for termination under Article 5 (Article 9, paragraph 2). The Committee recalls that the principle of the direct application of the Convention by national courts has been raised by the Court of Cassation in the ruling of 29 March 2006 of its social chamber. The Committee notes with satisfaction the information provided, which shows that the Convention is applied at the national level. It hopes that the Government’s next report will contain updated information on the application of the Convention in practice and further examples of court rulings concerning questions of principle relating to the application of the Convention.

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1. Article 24 of the Constitution of the ILO. Follow-up of a representation. The Committee notes the Government’s report received in June 2007 for the period 1999–2005, which refers in particular to the “contract for new employment” (CNE), adopted under Ordinance No. 2005-893 of 2 August 2005. It also notes the information on the developments in case law and the data provided on collective dismissals, appended to the Government’s report. Furthermore, the Committee notes that at its 300th Session (November 2007), the Governing Body adopted on 14 November 2007 the recommendations of the tripartite committee established to examine the representation alleging non-observance by France of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Termination of Employment Convention, 1982 (No. 158), made under article 24 of the Constitution of the ILO by the Confédération générale du travail – Force ouvrière. These recommendations entrusted the Committee of Experts to follow up the application of Convention No. 158 in respect of the questions raised in the representation (document GB.300/20/6).

2. Article 2, paragraph 2, of the Convention. Exclusions. The Government stated that workers recruited under a CNE can validly be excluded from the protection afforded by the Convention on the basis of Article 2, paragraph 2(b), under the terms of which workers serving a period of probation or a qualifying period of employment can be validly excluded from the protection of the Convention on condition that “such period is determined in advance and is of reasonable duration”. The tripartite committee concluded that there is not sufficient basis for considering the period of consolidation of employment as a “qualifying period of employment” of “reasonable duration”, within the meaning of Article 2, paragraph 2(b), which would justify the exclusion of the workers concerned from the benefits of the Convention during that period. Accordingly, pursuant to the recommendation approved by the Governing Body, the Committee invites the Government to submit a report on the measures taken, in consultation with the social partners, to ensure that the exclusions from the protection provided by the laws and regulations implementing the Convention, are in full conformity with its provisions.

3. Article 4. Valid reason for termination. The tripartite committee also concluded that Ordinance No. 2005-893 significantly departs from the requirements of Article 4 of the Convention which is “the cornerstone of the Convention’s provisions”, as indicated by the Committee of Experts in paragraph 76 of the General Survey of 1995 on protection against unjustified termination. Accordingly, pursuant to the recommendation approved by the Governing Body, the Committee invites the Government to include in its report the measures taken, in consultation with the social partners, to give effect to Article 4 of the Convention, by ensuring that “contracts for new employment” can in no case be terminated in the absence of a valid reason.

[The Government is asked to reply in detail to the present comments in 2008.]

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The Committee notes the Government's first report and the information provided regarding the provisions of law that give effect to the Convention. It would be grateful if in its second report the Government would provide additional information on the following points.

Article 2, paragraphs 4 and 6, of the Convention. The Committee notes that public sector employees are excluded from the application of the Convention in that they are governed not by the Labour Code but by special conditions of employment established in regulations or laws. It asks the Government to state how, as a whole, the special terms and conditions of employment of these workers provide them with protection that is at least equivalent to the protection afforded under the Convention.

Article 4. The Government indicates that effect is given to this Article of the Convention by section L.122-14-3 of the Labour Code which provides that the judge shall ascertain the "genuine and serious" nature of the reasons for termination relied on by the employer. The Committee would be grateful if the Government would indicate the types of reasons for termination which the courts regards as "genuine and serious", whether they are connected with the capacity or conduct of the worker himself or are economic in nature. Please indicate to what extent court decisions have set precedents and provide examples of such decisions.

Article 5(c). The Government refers to section L.123-5 of the Labour Code under which any dismissal of an employee following legal proceedings brought by or on behalf of the employee on the basis of the provisions of the Labour Code concerning equality in occupation for men and women, shall be declared invalid. The Committee would like to know whether there are any other provisions which ensure that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws and regulations or recourse to competent administative authorities do not constitute valid reasons for termination and if there are, please supply the text of such provisions.

Article 6, paragraph 1. The Committee notes that under section L.122-32-2 of the Labour Code an employer may not dismiss a worker while he is absent from work owing to an occupational accident or illness. The Committee would like to know whether there are any provisions which ensure that temporary absence from work because of illness or injury does not constitute a valid reason for termination and if there are, please supply the text of such provisions.

Article 6, paragraph 2. Please state whether there are any limitations to the application of paragraph 1, for example in the event of prolonged or repeated absence.

Article 8, paragraph 2. Please state whether the workers protected have access to specific means of redress where termination is subject to authorization by a competent authority.

Article 9, paragraph 3. Please specify the scope of the supervision exercised by the courts in respect of economic reasons for dismissal relied on by the employer and provide examples of relevant court decisions.

Point IV of the report form. Please supplement the information in regard to the provisions of the legislation with particulars of court decisions on questions of principle relating to the application of the Convention.

Point V of the report form. Please provide information on the practical application of the Convention including all available statistics on the activities of the courts and the number of dismissals for economic reasons. Please also provide other statistics as requested in the report form. Lastly, please indicate any practical difficulties encountered in the application of the Convention.

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