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Comments adopted by the CEACR: France

ADOPTED_BY_THE_CEACR_IN 2021

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Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to continue providing information on any legislative changes that could have an impact, and on the application in practice of the Convention at the national level. The Committee notes the detailed information provided by the Government on developments in public procurement law since 2016, in particular the entry into force on 1 April 2019, of the Public Procurement Code, which brings together in a single legal corpus all rules governing public procurement contracts. It also notes the modernization of the general administrative clause specifications applicable to public procurement (CCAGs). There are now six CCAGs, approved by Orders of 30 March 2021 with simultaneous entry into force on 1 April 2021. However, with regard to the effective application of the fundamental requirements of the Convention, which consists in the inclusion of labour clauses of the type provided under Article 2 of the Convention, the Government indicates that the essential requirement provided under Article 2 of the Convention is met under the legislative provisions and regulations in force. In any event, these provisions require that any enterprise must comply with the labour law applicable where the contract is performed and allow a public authority, through application of the CCAG clauses, to terminate a public contract in case of violation of a worker’s labour rights. Nevertheless, the Committee draws the Government’s attention to paragraph 45 of its 2008 General Survey on labour clauses in public contracts, which specifies that “… the mere fact of the national legislation being applicable to all workers does not release the States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention”. The Committee also specified that, “as regards the content of labour clauses, the Convention provides that they should ensure to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established by collective agreement, arbitration award, or national laws, for work of the same character in the trade or industry concerned in the district where the work is performed. Where the conditions of labour are not regulated by any of these means in the district where the contract is executed, reference must be made to the nearest appropriate district where such means are used, or the general level of conditions of work observed in the trade or industry in which the contractor is engaged by employers whose general circumstances are similar” (paragraph 21). Recalling that the Convention requires that labour clauses with very specific content be expressly included in public contracts effectively signed between the public authority and the selected entrepreneur, the Committee expects the Government to take all measures necessary to bring the national legislation into full conformity with the essential requirements of the Convention without further ado. The Committee requests the Government to keep the Office informed of progress made and reminds the Government that it can, if it so wishes, avail itself of the technical assistance of the ILO in this regard.

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The Committee notes the observations of the French Democratic Confederation of Labour (CFDT) and the Management Confederation of France-General Confederation of Managers (CFE-CGC) received on 6 and 8 September 2021 respectively, which relate to the issues examined in the present direct request. The Committee also notes the Government’s comments thereon.
Collective bargaining and the COVID-19 pandemic. The Committee notes the Government’s information on the measures taken in 2020 to support the continuation of collective bargaining during the health crisis and to enable the social partners to deal with the urgent situations created by the COVID-19 pandemic. The Committee notes in this respect that: (i) an exceptional mechanism for shortening certain deadlines for the conclusion and extension of collective agreements relating to the consequences of the health crisis was put in place; and (ii) this mechanism was applicable only to company and branch agreements whose exclusive purpose was to deal with the social, economic and financial consequences of the pandemic and it ceased to apply on 10 October 2020.
Article 4. Promotion of collective bargaining in small enterprises. In its previous comment, the Committee had noted the observations of the General Confederation of Labour Force Ouvrière (CGT–FO) and CFE–CGC denouncing that the reforms of the collective bargaining and social dialogue mechanisms adopted on 22 September 2017 had significantly extended the possibility of concluding collective agreements without the participation of trade union organizations, particularly in small enterprises. On the basis of these observations and the corresponding Government responses, and having recalled that negotiation with non-union actors should only be possible in the absence of trade union organizations at the relevant level, the Committee had requested the Government to: (i) specify the modalities enabling workers in enterprises with fewer than 11 employees and in enterprises with between 11 and 20 employees without elected staff representatives to negotiate collectively their working conditions through trade union organizations, if they so wished; and (ii) indicate the action taken to promote collective bargaining within the meaning of the Convention in small enterprises.
The Committee notes in this respect the Government’s indications that: (i) in enterprises with 11 to 20 employees, it is always possible, in the absence of an elected staff representative, to negotiate an agreement with one or more employees expressly mandated by one or more representative trade union organizations (Article L. 2232-23-1 of the Labour Code); (ii) even if the appointment of a trade union delegate (who, under French law, has the capacity to negotiate and conclude a collective agreement as long as his or her organization is sufficiently representative) is only expressly envisaged by the Labour Code for enterprises with at least 50 employees, the branches may set the number of employees in enterprises from which trade union delegates may be appointed. They can therefore provide for the possibility of appointing a trade union delegate in companies with fewer than 50 and even fewer than 20 employees if they consider it appropriate in the light of the trade union context in the branch; and (iii) a trade union organization can also negotiate in all small companies through the representative of the trade union section. Trade union organizations can in fact set up trade union sections in small companies under the conditions set out in Article L. 2142-1 of the Labour Code. Article L. 2143-23 of the Labour Code authorizes the representative of the trade union section to negotiate, in the absence of a trade union delegate in the company or establishment, company or establishment agreements if he or she is mandated by his or her trade union organization.
The Committee notes that the Government then provides information on the use in 2020 of the various methods of concluding collective agreements in small enterprises (apart from those agreements concluded specifically on employee savings). In this respect, the Government states that: (i) in companies with fewer than 50 employees in general, 19 per cent of the agreements concluded were signed by trade union delegates, 17.7 per cent were signed by elected staff representatives and employees mandated by a trade union organization, 20.7 per cent by elected staff representatives not mandated by a trade union organization, while 41 per cent were directly adopted by staff vote by a 2/3 majority; (ii) focusing the scope to companies with less than 21 employees, 72.9 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority; and (iii) further focusing the scope to companies with less than 11 employees, 89 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority.
The Committee also notes the additional information provided by the Government concerning: (i) the organization every four years of an election to measure the audience of trade union organizations in enterprises with fewer than 11 employees, in accordance with Article L. 2122-10-1 of the Labour Code, which, according to the Government, is likely to encourage the establishment of trade union organizations within these companies; and (ii) the existence of departmental observatories for analysis and support for social dialogue and negotiation, in which the trade union organizations are involved and which aim to encourage and promote collective bargaining in companies with fewer than 50 employees.
The Committee further notes the observations of the CFDT and the CGC-CFE. The Committee first notes that the CFDT wishes to nuance the Government’s assertion on the possibilities of trade union establishment in small enterprises insofar as other provisions of the Labour Code would, on the contrary, aim to prevent this. The Committee notes that the CFDT states in this respect that: (i) since 2017, trade union organizations are no longer automatically informed of the organization of elections for staff representatives in enterprises with 11 to 20 employees, which clearly limits their possibility of establishing themselves in these companies; (ii) even if the mandating by a trade union organization of an employee for the purposes of collective bargaining remains possible in enterprises with fewer than 50 employees without a trade union delegate, the employer now has the option of choosing other modalities for concluding collective agreements with non-union actors (negotiation with elected staff representatives when they exist ; in the absence of elected staff representatives in companies with up to 20 employees, submission by the employer of a proposal to a vote of the employees); and (iii) the employer does not inform the trade union organizations of its intention to negotiate a collective agreement in the company, which makes it very difficult to take initiatives to mandate employees for the purpose of collective bargaining.
The Committee also notes the position expressed by the CGC-CFE, which in turn criticizes agreements concluded by direct employee approval of a proposal made by the employer in companies with up to 20 employees. The trade union organization states that this mechanism does not give rise to genuine collective bargaining and that the conditions for a balanced debate between the employer and his employees are not met. The Committee notes in this respect the Government’s comments that: (i) the system of mandating employees of small enterprises by trade union organizations for the purpose of collective bargaining was very rarely used before the 2017 reform, which left many small enterprises without the possibility of negotiating and concluding collective agreements; (ii) collective bargaining in small and very small enterprises is generally of an informal nature; (iii) a qualified majority of employees is required for the approval of the agreement proposed by the employer envisaged by Articles L. 2232-21 to L. 2232-23 of the Labour Code; and (iv) under the same provisions, employees have a period of 15 days to express their opinion on the employer’s proposal and have the possibility to seek advice from the departmental observatory for analysis and support of social dialogue and negotiation.
The Committee takes note of these different elements. It first notes the information provided by the Government on the possibilities of collective bargaining through trade union organizations in small enterprises, including enterprises with fewer than 20 and fewer than 11 workers. The Committee also notes the divergent opinions of the Government and the trade unions on the effectiveness of measures to promote collective bargaining within the meaning of the Convention in small enterprises and on the mechanism for reaching an agreement through the approval by a 2/3 majority of the workers of a proposal submitted by the employer. The Committee also notes the allegations of the trade union organizations that, under Articles L. 2232-23 and L. 2232-23-1 of the Labour Code, in the event of the presence in the enterprise of an employee mandated by a trade union organization for the purposes of collective bargaining, the employer would have the choice of either negotiating with the latter or resorting to the other methods of concluding collective agreements provided for in the Labour Code in small enterprises and not involving trade union actors.
The Committee notes from the above that, under the legislation in force since 2017, there are three main ways of concluding collective agreements in small companies, each subject to specific rules and conditions: (i) the conclusion of an agreement with one or more trade union delegates or one or more employees mandated by a trade union organization; (ii) the conclusion of an agreement with one or more elected staff representatives not mandated by a trade union organization; and (iii) the approval of an employer’s proposal by a direct vote of the employees of the company by a two-thirds majority. The Committee notes that the first method is in line with Article 4 of the Convention, according to which collective bargaining takes place between employers and employers’ organizations on the one hand, and workers’ organizations on the other. With regard to the second modality, the Committee recalls, as indicated in its previous comment, that direct negotiation with elected staff representatives should only be possible in the absence of trade union organizations at the relevant level. As regards the third modality, the Committee considers that the adoption by a direct vote of the employees of a proposal by the employer does not have the characteristics of a collective bargaining mechanism within the meaning of the Convention. On the basis of the above, the Committee requests the Government to: (i) clarify whether, in a small enterprise where there is an employee mandated by a representative trade union organization for the purpose of collective bargaining, the employer may freely choose another method of concluding a collective agreement (negotiation with non-mandated elected staff representatives where they exist; submission by the employer of a proposal to a vote of the staff in the absence of elected staff representatives in enterprises with up to 20 employees); (ii) continue to provide statistics on the use of the different ways of concluding collective agreements in small enterprises; and (iii) continue to provide information on measures to promote collective bargaining between the employer and workers’ organizations in small enterprises.
In the context of the previous point, the Committee had also noted in its last comment that, following the reforms introduced by the ordinances of 22 September 2017, company agreements not signed by a trade union organization, particularly in companies with fewer than 50 employees and including those resulting from an employer’s proposal submitted to a vote of the employees, were able to set aside, on a significant number of subjects open to collective bargaining, clauses more favourable to employees established in branch agreements negotiated and signed by representative trade union organizations. Stressing that this option was not consistent with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee had requested the Government to: (i) provide information on the frequency and extent in practice of derogations from higher-level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher-level agreements enjoyed by agreements signed by non-union actors.
The Committee notes that the Government states that the Ministry of Labour does not have information on the number of company agreements signed by elected staff representatives or adopted through a direct vote by the workforce that derogate from branch agreements. However, the Government refers to a study published in 2021 by the Institute for Economic and Social Research (IRES) on collective bargaining practices and the articulation of branch and company agreements after the ordinances of 22 September 2017 in four different branches that concluded that: (i) the possibilities of derogation offered by the ordinances still appear to be little used by companies in the branches studied, with the exception of the Building and Public Works branch; and (ii) except in situations of strong economic or employment constraints, this possibility of mobilising derogatory practices also presupposes a key element: the existence of a negotiation dynamic within companies and the possibility of constructing give and take agreements.
The Government adds that during the health crisis caused by the COVID-19 pandemic, alternative procedures for concluding agreements enabled small companies to cope with the consequences of this crisis by benefiting from the “long-term partial activity scheme”, which was only accessible through a collective agreement. In companies with fewer than 20 employees, the vast majority of these agreements were adopted through a direct vote of employees.
The Committee notes that for its part, the CFE-CGC expresses its concern about the fact that agreements without prior negotiation allow for a substantial and potentially downward modification of the working conditions of employees in small enterprises. The trade union adds that interim evaluation report on the 2017 ordinances published by France Stratégie in 2020 is, in this respect, not reassuring. The CFE-CGC states that, according to this report, a third of 233 agreements with respect to overtime that were examined aimed to reduce the wage increase for overtime. The Committee notes the Government’s response in this regard, indicating that the contextual elements necessary to assess the importance of the rights and compensations granted by these agreements are missing.
The Committee notes the divergent interpretations of the trade union organizations and the Government and the difficulty of obtaining, at this stage, specific statistics on the extent and frequency of the use of the options for derogation recognized to collective agreements concluded by non-union actors. The Committee notes, however, that the Government does not provide any information on whether its request to revise the said opt-out has been taken into account. The Government states that the possibility of derogation recognized to collective agreements concluded through alternative procedures is necessary to enable small enterprises, where trade union presence is very weak, to benefit from the same capacity as large enterprises to adapt the law.
While noting that collective bargaining is indeed a fundamental adapting tool at the disposal of enterprises and sectors, the Committee again stresses that under Article 4 of the Convention, governments are required to promote bargaining between an employer, employers or their organizations on the one hand and workers’ organizations on the other. In these circumstances, the Committee reiterates that it considers that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations through agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention. The Committee therefore requests the Government once again to take, in consultation with the representative social partners, the necessary measures to review the possibility enjoyed by agreements signed by non-union actors to derogate from protective clauses contained in higher-level agreements negotiated by trade unions. The Committee requests the Government to provide information on any progress in this regard.
Promotion of collective bargaining. Platform workers. The Committee notes the examination by Parliament of the Bill ratifying Ordinance No. 2021484 of 21 April 2021 on the modalities of representation of self-employed workers using platforms for their activity and on the conditions for exercising this representation and empowering the Government to supplement through an ordinance the rules organising social dialogue with platforms. The Committee requests the Government to provide information on the results of this examination and on the adoption of any text concerning the exercise of the rights recognized by the Convention by platform workers, regardless of their contractual status.

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The Committee notes the observations of the General Confederation of Labour Force Ouvrière (CGT–FO). It requests the Government to provide its comments in this regard.
Article 2 of the Convention. Measures to attract nursing personnel to the profession and to retain them. In response to its previous comments, the Committee notes the statistics provided by the Government for 2003–13. The Committee refers however to the recent publication by the Directorate for Research, Studies, Evaluation and Statistics (DREES) on “healthcare establishments” (DREES 2021), which provides a more up-to-date synthesis of the main available data on French healthcare establishments, and notes that the number of nurses increased by 23 per cent between the end of 2003 and the end of 2018. Nursing personnel as a percentage of total staff also increased, from 24.1 per cent to 26.1 per cent over the same period. The percentage of auxiliary healthcare workers (21.1 per cent at the end of 2018) and of administrative personnel (10.8 per cent at the end of 2018) as a proportion of total hospital personnel remained broadly stable for 15 years. With regard to the distribution of nursing personnel throughout the national territory, the Committee notes, according to DREES 2021, at national level, public health establishments accounted for 60 per cent of hospital beds and places, non-profit private establishments for 15 per cent and profit-making private clinics for 25 per cent. This distribution is however very unequal across the departments. With regard to reforms, the Committee notes the information provided by the Government in respect of demographics, teaching and training, those actively engaged in the profession, career and remuneration and international cooperation for the recognition of occupational qualifications and authorization to practice allowing international mobility of nurses (general and specialized health care). In particular, it notes that nursing personnel have benefited generally from the “Professional development, career and remuneration” (PPCR) protocol, which has resulted in a rebalancing of remuneration in favour of index-related wages (a measure referred to as “bonus-points transfer”), and a revaluation over several years (between 2016 and 2020) of wage scales, with an average increase of around 12 index points. The Government indicates, moreover, that plans to develop status and benefits are in progress. These include the creation, in autumn 2019, of a special status for advanced-practice auxiliary medical workers. The exercise of advanced practice was included in a specific section of the Act of 26 January 2016 modernizing the health system, and its development was reaffirmed as a means of improving career prospects. It will initially concern only nursing personnel, as the diploma and exercise of advanced practice were recognized in France in 2018. As a complement to recognition of advanced practice, a new allowance was to be put in place in the summer of 2019 to reward engagement by healthcare workers in the inter-professional cooperation protocols established under Act No 2009-879, of 21 July 2009 on reforming the hospital and relative to patients, health and the territories (the HPST Act). In this regard, the CGT–FO observes that the establishment of a category of “advanced-practice nurses” looks like a crutch to prop up organized medical shortages. According to the CGT–FO, these specialized nurses will be paid lower wages than doctors and will be called on to perform and take full responsibility for medical acts, in a structure that has not been designed accordingly. The Government further indicates that implementation of the agreement of 2 February 2010 was completed on 1 September 2017, with the reclassification of the body of re-education workers and the body of electro-radiology technicians within Category A of public hospital personnel. The reclassification was optional for a six-month period, during which time the professionals could choose between their revalued status as a body under Category A or their previous status as a body under Category B, which was being phased out, with maintenance of their early retirement rights. In this connection, the CGT–FO observes that the option to choose between early retirement and thus turning down an increase in wages in a profession where wages were already very low, is additional proof of the difficulties encountered by nurses that the Government was not trying to solve. The Committee requests the Government to continue providing detailed and up-to-date information on the impact of recent reforms, in particular regarding employment and working conditions, including on career prospects and remuneration which are likely to attract persons to the nursing profession and retain them in it (Article 2(2)(b)).
Article 5. Consultation with nursing personnel on decisions concerning them. In response to the Committee’s previous comments, the Government indicates that trade unions are involved at local level in developments concerning internal organization of services. These phases of dialogue involve consulting the various groups of personnel, including the nursing personnel represented on the establishments’ technical committees and on the health, safety and working conditions committees. Employment and working conditions require obligatory consultations with these bodies. The Government adds that healthcare establishment professionals, including nurses, can benefit from support provided through mediation. In its observations, the CGT–FO refers to the creation of the “Nursing Order”, membership of which became compulsory in 2016, to point out that this measure simply increases the unattractiveness of the profession, and weakens the representation of nursing personnel, who are largely opposed to such membership. The Committee requests the Government to provide information on the content and development of the support procedure for nurses implemented through mediation. The Government is also requested to provide examples of consultations held with the social partners on issues covered by the Convention.
Article 7. Occupational safety and health. The Government indicates that French occupational safety and health legislation does not provide for specific measures aimed at improving the working conditions (as regards health, safety and security) of nursing personnel. However, the Labour Code provides that certain workers exposed to particular occupational hazards (asbestos, lead, ionising radiations, etc.) must be covered by a reinforced medical follow-up, the form of which is determined by the occupational physician. Nursing personnel may therefore, according to their function, benefit from this follow-up. Moreover, the occupational physician in charge of the multidisciplinary occupational health team can request authorization from the director of the establishment to seek the aid of persons or bodies “with the competences required to prevent occupational hazards and improve working conditions” (R4627-17 of the Labour Code), such persons or bodies may provide advice specifically concerning nurses. In this regard, the CGT–FO observes that the reform of the staff representative bodies under the 2017 Ordinances, as well as the abolition of the health, security and working conditions committee (CHSCT) and of the technical committees, greatly reduce the consideration given to matters of occupational safety, health and security, and worsen nurses’ working conditions. The Government’s revision of the table of occupational diseases and its refusal to take risks to mental health into account also add to the difficulties encountered by workers, in particular nurses. The CGT–FO also observes that the recent reforms led by the Government have resulted in the abolition of individual exposure sheets for exposure to certain factors of occupational hazards. This has also entailed excluding exposure to certain hazardous chemicals as a criterion for entry into the arduous or dangerous work category, regardless of the use of numerous hazardous chemical substances in healthcare establishments that put nurses’ health in danger. The CGT–FO further recalls that the nursing profession is primarily comprised of women and therefore requires solutions adapted to women in respect of working conditions, particularly to combat precarious work for women and gender-based inequality. The Committee also notes the CGT–FO’s observations, which draw attention to the current high level of distress of the healthcare personnel, including nursing personnel. Noting that, because of the specific nature of their work, nursing personnel are often in close contact with patients and so exposed to a very high risk of infection when providing care to patients presenting symptoms of infectious diseases, including COVID-19, especially if precautions to combat infection, such as the use of personal protective equipment (PPE) and vaccines, are not strictly applied or readily available, the Committee requests the Government to provide detailed and up-to-date information on all the safety measures taken or envisaged, to improve working conditions in respect of safety, health and security for nursing personnel specifically.

ADOPTED_BY_THE_CEACR_IN 2020

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The Committee notes the observations of the French Confederation of Christian Workers (CFTC) communicated with the Government’s report.
Article 4(4) of the Convention. Participation of shipowners and seafarers in the management of the pension scheme. The Committee notes the allegations of the CFTC that the requirements of Article 4(4) of the Convention, which establishes the right of shipowners and seafarers who contribute to the cost of pensions to participate in the management of the scheme, are not fulfilled. The CFTC refers in particular to the Committee of Interested Parties (CPI), established in 2018, which, although representing an initial step towards better application of this Article, has a merely advisory role and does not enable the social partners to participate fully in the management of the scheme, as required by the Convention. In reply to these observations, the Government indicates that, although persons in receipt of a pension under the seafarers’ social security scheme are not directly represented on the executive board of the National Maritime Invalidity Institute (ENIM), which is responsible for the seafarers’ social security scheme, the chairpersons of the bodies representing each of the four maritime sectors (trade, fisheries, marine fish farming, leisure boating) are members of the ENIM executive board. As regards the CPI, the Government indicates that its role is to formulate opinions on any matters coming within the competence of the ENIM executive board and that at each meeting it considers the items on the agenda for the next board meeting. The Government also recalls the setting up of the Higher Seafarers’ Council (CSGM), which is the umbrella organization for the maritime community and within which the federations of retirees play an active part. The Committee observes that under section 3 of Decree No. 2010-1009 of 30 August 2010 establishing the administrative and financial structure of the National Maritime Invalidity Institute, the composition of the ENIM executive board does not explicitly include representatives of the shipowners and seafarers who contribute to the cost of pensions, as established by Article 4(4) of the Convention. With regard to the CPI, the Committee observes that, according to the ENIM annual report for 2018 referred to in the Government’s report, although the opinions of the CPI are not binding on the executive board, they contribute to the board’s decision-making through the clarification they provide, while raising its awareness of the expectations of maritime stakeholders. The Committee also observes that the ENIM report announces the launch in 2019 of discussions on amendments to the ENIM regulations in order to align them with those of a social security organization by fully incorporating the social partners in the governance of the Institute. The Committee requests the Government to provide information on the results of the discussions launched in 2019 and on the measures taken or envisaged, if applicable, to ensure that shipowners and seafarers, whether in receipt of a pension or still making contributions, participate fully in the management of the ENIM scheme, in accordance with Article 4(4) of the Convention.

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The Committee notes the observations of the General Confederation of Labour–Force Ouvrière (CGT-FO) received on 9 October 2019, as well as the corresponding comments from the Government. The Committee notes that some of the issues raised which the CGT-FO describes as obstacles to the free exercise of the right to organize are being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and the CGT-FO under article 24 of the ILO Constitution
Article 2. Freedom to form unions. The CGT-FO indicates that when a trade union is established, it is required to submit its articles of association to the town hall. The mayor transmits the articles of association to the Office of the Public Prosecutor (art. R 2131-1 of the Labour Code). The latter must verify that the newly established trade union is not pursuing an aim contrary to public order and morals and that its leaders fulfil the requirements. It alleges, however, that prosecutors or town halls tend to request the submission of documents not required by the regulations, such as identity documents, although nationality should not be taken into account for the establishment of trade unions. The Committee notes that the Government indicates that French nationality does not constitute a criterion for the establishment of a union and that article L 2131-3 of the Labour Code provides that “the founders of any trade union shall submit their articles of association and the names of those who, in any capacity, are responsible for their administration and management”. While recalling that the requirement of certain formalities is not in itself incompatible with the Convention, provided that they do not constitute an obstacle to the right of workers to establish and join organizations of their own choosing, without any distinction, the Committee notes this information . The Committee trusts that the formalities requested by the local authorities will not be applied in a way that can interfere with the right of workers, without distinction whatsoever, including nationality, to establish and join organisations of their own choosing
Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. The Committee notes that the concern of the CGT-FO that the Ratification Act No. 2018-217 of 29 March 2018 still does not restore the full freedom of trade unions to choose their representatives. The CGT-FO considers that, under the new legislative provisions, trade unions that appoint their delegates must always be representative unions, and the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. According to the CGT-FO, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that the Government did not take into account its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions.The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. In its view, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions, was not taken into account.
For the CGT-FO, defence of freedom of association would also have required the words “or, failing that” in section L 2143-3 to be deleted, so that the trade union delegate could be chosen from among the ordinary candidates for occupational elections or from among members or former representatives. The CGT-FO indicates, however, that the Government recognizes, in a circular, that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates so that the trade union can choose an ordinary member.
For its part, the Government indicates that section 6 of Act No. 2018-217 of 29 March 2018 added an exception to the obligation (provided for by the previous legislation of 2008) to appoint trade union delegates from among candidates who personally obtained at least 10 per cent of the votes cast, namely, when all of the elected representatives who fulfil this requirement waive in writing their right to be appointed as trade union delegates. According to the Government, the hypothetical outcomes provided for in section L 2143-3 would never put representative trade union organizations in a situation where they could not choose their representative.
The Committee recalls in this regard that : (i) the requirement established by the law of 2008 to appoint trade union representatives from among candidates who have personally obtained at least 10 per cent of the votes cast led to the submission of a complaint to the Committee on Freedom of Association (Case No. 2750); (ii) the Committee on Freedom of Association noted with satisfaction the significant easing brought about by the amendment of section L 2143-3 of the Labour Code by Act No. 2018-217 of the conditions imposed on the appointment of trade union representatives, emphasizing that the reform contributes to the preservation of the right of trade union organizations to freely choose their trade union delegates; and (iii) on that basis, the Committee closed the case (see 389th Report, June 2019).
The Committee further observes that: (i) while the legislation does not explicitly provide for the scenario highlighted by the CGT-FO, the Government recognizes by means of a circular that that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates, so enabling the trade union to choose an ordinary member as a trade union delegate if it so wishes, and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived their appointment as trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass soc. 8 July 2020, No. 19-14605). Noting with interest the progress achieved in terms of legislation and case law with regard to the recognition of the freedom of trade unions to choose their representatives in the enterprise, the Committee invites the Government to provide information on any legislative follow-up given to the above-mentioned ruling of the Court of Cassation.
Compatibility of rules on financial transparency with freedom of association. The Committee notes that, according to the CGT-FO, the requirements of financial transparency and certification of accounts burden the operation of trade union organizations and are contrary to the principle that trade union organizations should organize their administration and activities freely. The CGT-FO considers that the new measures and their application by case law (Cass. soc. 17 October 2018, No. 17-19732 : the accounts published by the trade union should not be out of date when the trade union branch representative is appointed; Cass. soc. 17 October 2018, No. 18-60030: the publication of accounts on the Facebook page of the trade union does not meet the criterion of financial transparency; Cass. soc. 13 June 2019, Nos 18-24814, 18-24817 and 18-24819: the trade union must have published its accounts and must also obtain approval for them from the general assembly or statutory body) would ultimately impede the legal pursuit of trade union activities.
The Committee notes the Government’s indication that in its decision of 30 April 2020, the Constitutional Council found that the obligation on trade unions to meet the requirement of financial transparency “does not ignore freedom of association or the principle of worker participation” (DC No. 2020-835 QPC of 30 April 2020). The Government indicates that: (i) the financial transparency rules imposed on trade union organizations are not opposed to freedom of association as protected by the Constitution but, on the contrary, contribute to ensuring its effective realization. The autonomy and independence of the trade union movement are basic to the collective aspect of freedom of association that financial transparency seeks to guarantee by requiring trade union organizations to make public the sources of their funding; (ii) financial transparency also helps to inform the decision to join a trade union organization by allowing employees to be fully informed of the sources of funding of the organization to which they belong or which they intend to join and the manner in which their membership fee is used by that organization; (iii) with regard to the funds disbursed by the national joint fund management association, trade union organizations and professional employers’ organizations may use their funds freely, provided that they can establish their compliance with legally defined missions of general interest. Organizations receiving funds can also justify their use in a public annual report to the National Joint Funds Management Association (AGFPN), on which the annual report that the AGFPN submits to Parliament and the Government is based; (iv) financial transparency of accounts is also a criterion by which the representativeness of organizations can be identified.
The Committee notes this information and considers that the elements laid before it by the CGT-FO do not allow for a finding that the financial rules or those governing external control of financial reporting exceed the objective of protecting the interests of members and ensuring the democratic functioning of institutions.
Parity in occupational elections. The Committee notes that the CGT-FO finds that the interpretation by the Court of Cassation of the provisions of the law of 17 August 2015 (Article L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff institutions would be incompatible with freedom of a trade union to put forward the candidates of its choice. It alleges that, further to the ruling of the Court of Cassation of 9 May 2018 (No. 17-14088), the diversity obligation imposed when there is a list containing two or more candidates precludes the trade union organization from proposing a sole candidate. The Committee notes that the CGT-FO states that a trade union should, if it so wishes be able to submit a list with a sole candidate (a man or a woman), provided that each sex is represented in the electoral college, and to the extent that a man or a woman can be placed without distinction at the top of the list. The CGT-FO considers that, since the Court of Cassation allows incomplete lists, it must be possible for lists to consist of a sole candidate in order to protect the freedom of trade unions to draw up lists.
The Committee notes that the Government refers to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042) according to which freedom of association, viewed from the perspective of freely choosing representatives, is not absolute: the Court recognized, inter alia, that: (i) the obligation imposed on trade union organizations to submit lists for occupational elections that alternately comprise candidates of both sexes proportionate to the share of women and men in the electoral college concerned is consistent with the legitimate objective of ensuring that employee representation reflects the reality of the electorate and of promoting effective gender equality; and (ii) the legislation envisaged not abstract parity but proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise.
While noting the information provided by the Government with regard to the recognition by legislation and case law of a relationship of proportionality between the number of candidates and the number of male and female employees in the electoral college of the enterprise, the Committee requests the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates.
Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee notes that the CGT FO alleges that in a recent decision (CE, 24 May 2017, No. 392661), the Council of State considerably restricted the standing of a trade union federation to take action by not recognizing the latter's right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend.
The Committee notes the Government’s indication that : (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent, and (ii) under the terms of section L 2133-3 of the Code : “trade union federations shall enjoy all of the rights conferred on occupational trade unions by this Part.” According to the Government, the Council of State’s decision of 24 May 2017 does not in any way restrict the capacity of unions to take legal action but merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision.
The Committee observes that the legal action in question concerned a prefectoral decision having granted an exception to the rule of Sunday rest to a single establishment of a company of retail trade of automobile equipment. The Committee notes that, in the case in question, the Council of State ruled that a departmental trade union federation defending in particular the interests of non-food trade employees, although it had affirmed at a number of federal congresses its objective of preserving the rule of Sunday rest, did not have an interest that would give it standing to apply for the prefectoral decision to be overturned because of the exclusively local nature of the activity of the company concerned which was located in a department neighbouring that of the departmental union in question. Noting the trade union federation concern that even a local exception to a legal rule or principle may be invoked in subsequent cases that affect members’ legitimate interests, and emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requests the Government to provide more detailed information on how this right is regulated in the legislation and in case law, and to indicate in this regard the criteria used by the competent courts to define its contours, including with respect to decisions of allegedly local scope.
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