REPRESENTATION (article 24) - FRANCE - C087, C098, C111, C135, C151 - 1987

GENERAL FEDERATION OF LABOUR, THE TRADE UNIONS INTERNATIONAL OF TEXTILE, CLOTHING, LEATHER AND FUR WORKERS

Closed

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Report No. 250 of the Committee on Freedom of Association, Case No. 1364 -- Representation against the Government of France pursuant to article 24 of the Constitution made by the General Federation of Labour. Complaint against the Government of France presented by the Trade Unions International of Textile, Clothing, Leather and Fur Workers

Report No. 250 of the Committee on Freedom of Association, Case No. 1364 -- Representation against the Government of France pursuant to article 24 of the Constitution made by the General Federation of Labour. Complaint against the Government of France presented by the Trade Unions International of Textile, Clothing, Leather and Fur Workers

Decision

Conventions nos. 111 and 151: Not receivable. Procedure closed (March 1986). Conventions nos. 87, 98 and 135: Referred to the Committee on Freedom of Association (Case No. 1364). Report No. 250, March 1987.

Complaint Procedure

4. In a letter dated 18 February 1986 the General Confederation of Labour (CGT), acting in accordance with article 24 of the Constitution of the ILO, made a representation alleging the failure of the Government of France to implement the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), the Right to Organise and Collective Bargaining cms Convention, 1949 (No.098), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Workers' Representatives Convention, 1971 (No. 135) and the Labour Relations (Public Service) Convention, 1978 (No. 151). In two communications dated 21 May and 16 September 1986 the CGT submitted further information in support of its representation. The Trade Unions International of Textile, Clothing, Leather and Fur Workers presented their own complaint in a communication dated 1 October 1986.
5. The Officers of the Governing Body, in a report to its March 1986 Session, observed that France has ratified the first four Conventions referred to but not Convention No. 151. They also noted that, whereas the representation indicates the points in respect of which the Government of France is alleged not to have implemented Conventions Nos. 87, 98 and 135, it provides no such information in respect of Convention No. 111.
6. In these circumstances, the Governing Body decided, on the recommendation of its Officers:
(a) to declare the representation made against the Government of France irreceivable in regard to Conventions Nos. 111 and 151;
(b) to declare the representation made against the Government of France receivable in regard to Conventions Nos. 87, 98 and 135;
(c) to refer the representation to the Committee on Freedom of Association for its consideration.
7. The Government submitted its observations in communications dated 5 August 1986 and 16 January 1987.
A. The complainants' allegations
8. In its representation the CGT states that anti-union repression in France since 1984 has taken on extremely serious proportions. The CGT bases its allegations with respect to Conventions Nos. 87, 98 and 135 on five points relating to international commitments entered into by France: attacks on trade union rights in the private and nationalised sectors, trade union premises and means of action of trade union organisations, the rights of workers' representatives in the private and nationalised sectors, the right to bargain collectively, and the exercise of the right to strike and freedom of association.
9. According to the CGT, the infringement of trade union rights in the private and nationalised sectors constitute a violation of Articles 3, 8 and 11 of Convention No. 87 and Article 1 of Convention No. 98.
10. The CGT explains that it was encouraged by the progress that was made in legislation relating to trade union rights in 1982 and 1983 (generalisation of trade union sections, representation of small enterprises, positive redefinition of the purpose of the trade union movement, wider freedom of movement and of contacts, etc.) but that, in its view, freedom of association is still founded on elected or appointed representatives and has not been extended, with more specific rights and guarantees, to wage earners or union members.
11. The CGT sees dismissal for economic reasons as an ideal means for employers to rid themselves first and foremost of unionised workers. There have been many instances of this discriminatory practice, and the CGT considers that, when it examines requests for authorisation to dismiss workers, the labour administration is not as vigilant and firm as its legal prerogatives entitle it to be.
12. The dismissal of strikers is a common practice among employers such as the Scapie company in Bordeaux and Bègles (Gironde), which refuse outright to recognise even the most elementary trade union rights. The workers go on strike in support of their demands, and the strikers are thereupon dismissed.
13. Some employers, such as S.G. Etanchéité in Paris (40 employees), Forclum (closure of its Paris branch, 150 employees), Coignet (1,500 employees, filed for bankruptcy, set up a new company excluding the branch in which the CGT held majority representation), EGPI, Batinger and Fijon, have had no compunction about liquidating their enterprise, dissolving it or filing for bankruptcy in order to rid themselves of the trade union section.
14. The CGT considers that the dismissal of Alain Clavaud by the management of Dunlop-MontluUon (SUMITOMO group) simply for expressing his views is a blatant illustration of certain employer practices. Alain Clavaud, who described his working conditions and life as a night shiftworker on an assembly line in a newspaper, l'Humanité, that published the diary he kept of his impressions at work, is accused of having failed to observe proper discretion, a trumped-up charge that neither his job nor what he has said about it can possibly justify.
15. As regards the trade union situation in small enterprises, the CGT recalls that the principal legislative provisions designed to promote trade union membership in such places of work were based on the institution of shop stewards, joint local committees, the protection of candidates for election as trade union delegates and the requirement that elections for staff delegates be held every year, together with the posting of labour inspectorate reports on shortcomings observed in the enterprise. The CGT claims that attempts to hold elections for shop stewards failed because of the Labour Administration's restrictive interpretation of the texts. A June 1985 report by Mme Frachon, a National Assembly deputy, and the Minister of Labour himself recognise that these provisions have completely failed to improve staff representation in small enterprises, mainly because of the labour administration's inertia and the labour courts' very restrictive interpretation of the "burden of proof" as regards candidatures for elections.
16. The CGT believes that, in certain groups of enterprises pursuing a drastic anti-union strategy such as S.A. Galeries du Papier Peint, Casino, RCS (lifts) and CGEE-Alsthom, any attempt to set up trade unions, designate trade union delegates and appoint staff delegates is systematically thwarted. More over, it also draws attention to the highly irregular situation as regards trade union freedoms and industrial relations at Citroën, Peugeot and Talbot, where the law of the land takes second place to the law of the employers and where unionised workers and CGT staff representatives suffer unrelenting repression.
17. On the subject of trade union premises the CGT alleges that Articles 1, 2 and 3 of Convention No. 87 have been violated and that, since 1983, the local CGT unions' job centres, community centres and headquarters in several major cities have come under severe attack from the municipal authorities and have suffered enormously. Some job centres have even been quite illegally closed down, despite the fact that they had legal personality and autonomous status. Job centres, community centres and local unions have been evicted from premises they have been using regularly and peacefully for years without being offered any decent alternative accommodation that could serve their purpose. Some municipalities, claiming the right to take over premises without offering any alternative accommodation and without negotiating arrangements, have been disorganising the everyday running of the union organisations concerned. In some cases, weeks of conflict have ended in trade union organisations being obliged to accept inadequate, unsuitable premises scattered about in different buildings (whereas before they were all in one place) a long way from the local economic and administrative centre, regardless of their real representativeness and activities. Very often the CGT has been discriminated against by the municipalities. The Government has done nothing to protect or restore the rights of the CGT job centres, community centres and local interoccupational and occupational unions to be housed in suitable peaceful and satisfactory conditions, without constantly being threatened by a change in the local political majority.
18. The CGT bases its allegations on specific cases where such operations are said to have taken place. In Levallois-Perret, the mayor and municipal council illegally shut down the job centre without offering any grounds related to the public interest. The local unions were removed from the centre by force and then had to be rehoused. Although the administrative courts have found against the Levallois municipality on several occasions, it is openly refusing to comply with the verdict and the job centre, for all its legal status as a public welfare establishment, has been unable to exercise its rights. In several towns CGT local union job centres that have existed for decades, if not since the beginning of the century, have come under attack from the new municipalities that were elected in 1983: Saint-Germain-en-Laye, Chelles, Nîmes, Arles, Fréjus, Noisy-le-Grand, Aulnay-sous-Bois, Franconville, Rosny-sous-Bois, Gagny, Montfermeil, Neuilly-Plaisance, Vaison-la-Romaine, Sète.
19. According to the CGT, this crack-down on the provision of union premises free of charge is accompanied by the cancelling or drastic reduction of municipal subsidies that have been allocated from the communal budget every year since the job centres and local unions were first set up. Some municipalities have also stopped making members of the commune's administrative staff available to the centres.
20. At the Paris job centre the local municipality has initiated proceedings against the CGT, which claims to be the most representative workers' organisation, in an attempt purely and simply to strip it of its right to be represented on the centre's administrative board and thus deny it a large part of the premises and financial advantages (subsidies, jobs) to which it is entitled by virtue of its representativeness. It is being discriminated against in two ways by the City of Paris which, on the one hand, has for years been housing trade union organisations belonging to other confederations in modern premises outside the job centre and, on the other, is now attempting to allocate the only CGT departmental union in Paris a tiny share of the centre's ancient premises and to cut off its source of finance. This situation has created major difficulties in the day-to-day running of numerous occupational and local trade unions affiliated to the CGT in Paris.
21. Regarding the infringement of the rights of workers' representatives in the private and nationalised sectors, which it claims are in violation of Articles 1 and 2 of Convention No. 135, the CGT explains that a special legal procedure is necessary for an employer to dismiss elected or appointed workers' representatives; whether the reasons given are personal or economic, no workers' representative may be dismissed without prior authorisation from the labour inspector. If the dismissal is authorised, an appeal may be lodged either through administrative channels (with the relevant minister) or through judicial channels (with an administrative court).
22. In the CGT's view, internal administrative procedures do not in point of fact really guarantee workers' representatives satisfactory protection against threats of dismissal for economic or disciplinary reasons. The Minister of Labour bears some of the responsibility in this respect, both because too few officials are designated to investigate such matters and because the Ministry underestimates the extent and gravity of the employers' attack on workers' representation, and specifically on members of the CGT, the full implications of administrative decisions and their direct consequences for trade union activities in the enterprises where dismissals have been authorised.
23. The Minister's responsibility is involved because the central administration, acting directly under his orders, is not as firm as it should be in ensuring that its various services are properly vigilant. The administration and the Minister, when considering an appeal lodged through administrative channels, do not use the real powers that the law grants them to consider the protection of trade union rights from the standpoint of the general interest, without thereby jeopardising the employers' interests unduly. More over, when an employer lodges an appeal through judicial channels with the administrative courts, the central labour administration's examination of the case and its decision are strictly formal. Just how serious the employers' attack on CGT representation in private and nationalised enterprises is can be shown from statistics and from specific instances. According to the CGT, the employers' attempt to remove trade union leaders from their enterprises is part of a deliberate strategy.
24. Between 1978 and 1982, 10,500 elected staff representatives and trade union delegates were dismissed for economic and non-economic reasons with the authorisation of the central administration. According to the CGT's records (although no official statistics were published between 1983 and 1985), more than 5,000 dismissals were authorised in 1983 and 1984 alone, and the complainant believes that the trend accelerated in 1985. At the end of 1984, over 1,000 appeals had been lodged with the Minister, a 40 per cent increase over 1983, and the volume was up by a further 30 per cent in the first quarter of 1985.
25. The CGT draws the following conclusions from these figures. Over a period of seven years, between 1978 and 1984, nearly 20,000 protected workers' delegates were dismissed; of these 12,000 were dismissed in the space of four years, i.e. one elected CGT representative out of ten, a quite considerable figure. Yet these statistics comprise only a fraction of the union activists and officials who were actually dismissed - that is to say, those benefiting from legal protection. They show that eight out of ten dismissals took place in the context of collective dismissals for economic reasons - in which, incidentally, a very large proportion (more than proportional to the Confederation's influence) of CGT activists, members and voters, all unprotected, were involved. The CGT says it is impossible to give the exact number of trade union sections, works' committees and staff delegations that have been eliminated or decimated in this way, often losing their most dynamic members. At the local level, such measures inevitably have a dissuasive psychological impact on union activities in other enterprises. Conversely, they are bound to encourage employers further. One out of every two requests for authorisation to dismiss a protected worker (for economic or other reasons) concerns the CGT, the remainder being shared among all four other confederations and non-unionised elected representatives. Considering its representativeness, the CGT is therefore obviously being singled out. Some 68 per cent of requests for authorisation to dismiss CGT militants for economic reasons are granted by the labour inspectors. Authorisations for disciplinary reasons (one request out of two) are granted in 40 per cent of cases and, of the 60 per cent that are turned down, 40 per cent are subsequently granted by the Minister on appeal by the employers. Dismissal for so-called disciplinary reasons is therefore a very common practice and is one of the major forms of repression exercised by the employers.
26. The CGT claims that, although dismissals for economic reasons and on account of bankruptcy and reorganisation do have a financial aspect, they also invariably have anti-union overtones which in some cases obviously predominate. A partial breakdown of dismissals shows that 1,854 out of 3,146 dismissed workers belonged to the CGT, clear proof of employer discrimination against the organisation. The dismantling of Creusot-Loire is a case in point. In one Chalon-sur-Saône establishment (192 dismissals), 80 per cent of the CGT members were dismissed (65 out of 80, the entire union secretariat and eight CGT elected representatives). At Le Creusot there has been obvious discrimination among elected representatives (five CGT, two CFDT, two FO, one CGC). At Nantes the main CGT officials, including Gaston Auffray, the Secretary-General, are among the dismissed workers. The dismissal of the three CGT members has been confirmed by the Minister of Labour whereas that of the three CFDT members has been rejected. At Châteauneuf (Loire) most of the 130 dismissed workers are CGT members or supporters, including the union's three principal officials. For good measure, the management has initiated dismissal proceedings against six CGT militants for gross misconduct, which was deliberately provoked.
27. Of 24 workers dismissed at AFO Saint-Nazaire, 16 are CGT members and three former CGT delegates. At AFO Brest, 50 per cent of the 170 workers dismissed (16 per cent of the staff) were CGT elected representatives, 11 were CGT delegates and 22 were former CGT delegates. At AFO Dunkirk the 117 cases of workers being placed on retraining leave were really just postponed dismissals and concerned 104 union members and known supporters, the trade union representative, a staff delegate, the secretary and a member of the CHSCT, a member of the industrial tribunal (tribunal des prud'hommes) and ten former elected representatives.
28. The CGT also cites what it sees as even more obvious cases where anti-union discrimination is in fact the main reason for dismissal and has developed into what can only be described as a plot. In 1984, ECVI Bordeaux-Maisons Mallardeau ordered 30 dismissals for economic reasons (involving two CGT delegates) that were confirmed by the Minister of Labour when the CGT appealed the decision. A few months later, some of those dismissed - but not the two CGT delegates - were taken on again on fixed-term contracts. At the EGNEC-Pessac company, a Force ouvrière (FO) trade union was set up following the establishment of a CGT union in the summer of 1984. In the elections that ensued, no FO member was elected. Two "separate" companies were then created and new elections were held in which, again, no FO member was elected. Subsequently, one of the companies, in which the secretary of the CGT union was employed, filed for bankruptcy, following which - once the union leader had been dismissed - the two companies were merged. In another case, as a result of action taken by the CGT, the Derruppe-Le Bouscat (métals) company resumed operations at the beginning of 1985. None of the ten CGT elected representatives and activists was taken on, however, and unofficial negotiations took place between the CFDT, the CGC, the new employer and the public authorities to ensure that the CFDT and CGC were the most representative organisations in the new enterprise, whereas previously the CGT had held a large majority. An action committee has been set up by all the workers who have not been reinstated.
29. The CGT says that it could cite many other instances of employers resorting to dismissal for economic reasons, filing for bankruptcy, reorganising their operations and resuming activities. It refers, for example, to a document emanating from the Loire departmental labour directorate concerning an employer's request for authorisation to dismiss for economic reasons a CGT activist who was the secretary-general of the trade union section of FOP (hand tools) in Saint-Etienne, an enterprise that went into liquidation in January 1985 before being bought up by UNICUM. After recognising that there was indeed a link with the activist's trade union activities, that his dismissal was liable to undermine the existence of the trade union in the enterprise and that the dismissal could not be justified on professional grounds, the labour directorate official added: " ... in view of the fact that the employer makes the dismissal of Mr. ... an absolute condition for reviving FOP and the 23 jobs involved, I hereby authorise his dismissal". In the Bata (Dordogne) affair, which is still going on, the Minister of Labour yielded to the Canadian corporation's blackmail: either the factory with its 812 employees is closed down, or else five of the 12 CGT union officials - those picked out by the management as union leaders - are dismissed. "Saving the enterprise" thus means eliminating the trade union leadership (five workers out of 812).
30. The CGT goes on to cite the case of the secretary-general of the miners' union in the Cévennes coalfield, F. Iffernet, and that of two union officials representing Ladrecht miners, P. Baducco and Saód Smaól, who were dismissed by the management of the coal mine with the agreement of the general manager of Charbonnages de France and the minister concerned, the Ministry for Industrial Redeployment and Foreign Trade. This is the first time since 1952 that such serious action has been taken against union leaders in the coalmining sector. For the CGT it constitutes a serious and blatant aggression against their fundamental rights and against the exercise of freedom of association and of the right to strike and has been timed to coincide with the miners' decision, in the economic and social interest of the country, to start agitating again to defend the future of the coalfield, their jobs and their whole region which is threatened by desertification and a slow death. The management is deliberately attempting to crush the CGT and the CGT-led miners' struggle by striking at the coalfield's principal trade union leaders. According to the CGT, it has also carefully cultivated a climate of hatred against the miners in its determination to crush the union. Several court cases have been brought against the leaders of the miners in an attempt to discredit them and break their resistance. As part of the same anti-union repression, another CGT miners' delegate, A. Tassera, has also just been punished.
31. The CGT observes that there has been an unprecedented increase in disciplinary measures since 1985: a pay freeze for union activists through the introduction of individualised wage policies; a freeze on promotions; non-payment of time spent by union delegates on their trade union activities; refusal to authorise access to "defence" areas in certain enterprises (Thomson, Matra, Dassault-Aérospatiale); unjustified extension of these areas to the point of denying workers their trade union rights; isolation of activists and refusal to give them work, as in the case of M.A. Mattighello, a member of the CEF at the Selnor-Lesquire company. Thousands of CGT activists and members and workers are in fact being harassed and deprived of their rights and freedoms.
32. With respect to collective bargaining and the alleged infringements of Article 4 of Convention No. 98, the CGT, a strong supporter of collective bargaining, considers that the laws and regulations made under the Act of 13 November 1982 are discriminatory and contrary to the most elementary rules of democracy which accord the majority the right to govern and to lay down rules and regulations and that, consequently, the right of workers to bargain collectively is not respected. If, as the Declaration of Philadelphia indicates, collective bargaining is a fundamental right of the workers, then in the last and decisive phase of negotiations, namely the signing and ratifying of collective agreements, the laws and regulations in force in France completely disregard this right, the most elementary principles of democracy and the principle of non-discrimination.
33. The CGT points out in this respect that, on the workers' side, only trade union organisations recognised as representative can validly be invited to negotiate. This is in keeping both with the fact that the workers (normally represented by trade union organisations at such negotiations) are entitled to demand certain guarantees and with the principle of non-discrimination that prevails in France's pluralistic trade union system. A collective agreement applies to all workers employed in the signatory enterprises, either directly or by virtue of the employers' organisation to which the enterprises are affiliated; i.e. all workers, irrespective of the trade union organisation to which they belong and even if they are not members of any trade union. This, too, is quite in keeping with the principle of non-discrimination. However, between the bargaining stage, which must by law comply with the principles, Conventions and Recommendations of the ILO, and the implementation stage, which must likewise meet the same criteria, the agreement has to be signed for it to be valid and duly applicable; and it is here that the legal system as it operates in France disregards the workers' rights, ignores democratic process and introduces the worst possible form of discrimination by favouring the minority and according it the exorbitant right of imposing its will on the majority. The letter, the spirit and the absolutely rigid enforcement of existing rules and regulations mean that, even if a collective agreement is signed by what is considered an organisation with only extreme minority representation, it is legally binding on all workers employed in enterprises whose employers are signatories. Worse still, in so far as the substance of an industry-wide or inter-occupational agreement does not infringe existing laws and regulations, there is nothing the workers can do to prevent its being extended to non-signatory enterprises. This was confirmed by the Minister of Labour himself during a National Assembly debate when he said: "The Minister of Labour decides whether or not to extend the scope of an agreement after having analysed the legality of the text and its economic and social implications within the industry. He cannot refuse to extend the scope of an agreement on the grounds that the signatory or signatories are in a minority position, and I therefore confirm what I have just said. Any other way of proceeding would not only be illegal but would be a regression from a situation that has existed since 1982 in so far as it would call directly into question the concept of the representativeness of trade union organisations." This rule permits and perpetuates a practice that is socially unhealthy and anti-democratic. More over, it discriminates in this respect between the rights of workers' organisations and of employers' organisations, where an agreement that is signed by a minority employers' organisation against the will of the majority organisations is not extended but is applied (to all the workers) only in enterprises whose employers are affiliated to the minority organisation.
34. The CGT does however add that, from the formal standpoint, the French system's failure to conform to ILO principles is tempered by two provisions, though these have no practical relevance. One concerns agreements at the industry level and the other agreements at the level of the enterprise. In both cases, the provisions relate only to agreements that operate to the disadvantage of the workers and depart from the laws and regulations in force (prior authorisation having been granted for such a departure from the norm). Industry-level agreements that come under this heading are applicable only after having been extended (and there is nothing to prevent minority agreements being extended in this way), and the CGT cites a particularly characteristic example of a national chemical industry agreement on hours of work which it says was concluded in irregular circumstances and signed by only one representative organisation) that was extended against the opposition of the four other majority organisations. As to agreements at the level of the enterprises that depart from the laws and regulations in force - and in this case alone - these may be contested only within eight days of their signature and provided a written and substantiated objection is lodged by one or more organisations that together have polled over half the ballots of the registered voters in trade union elections (given the statistical ratio of voters to duly registered electors, this means in practice more than 70 per cent of those voting).
35. Concerning the right to strike, the CGT claims that this is being undermined by employers in both the private and the nationalised or public sector. In order to prevent, neutralise or shorten strikes or to limit their scope, employers are preventing workers from exercising their trade union rights and directly attacking union representatives and organisations. Their aim is to intimidate the workers, expose the strikers to public scorn and condemnation and to isolate, discredit and repress union leaders and elected staff representatives. They also directly attack the resources of trade union organisations, for example by fining them and depriving them of their means of action. To do this the employers take advantage of their economic strength, the institutional machinery and the whole battery of existing legal procedures and the mass media. In the face of this unprecedented offensive, the Government is not in the CGT's view taking the necessary steps to defend trade union freedom and the exercise of the right to strike and is not using the extensive means available to it, such as intervention by the labour administration, the definition of a judicial policy, the issuing of directives to the magistrates of the public prosecutor's office, etc. It did not, for example, respond favourably to the CGT's request that it introduce a Bill repealing the 120 year-old section 414 of the Penal Code that has been revived to justify on legal grounds the action taken by non-strikers against strikers and union delegates. In fact, employers are using non-strikers more and more often to spearhead their offensive and to initiate legal proceedings against union officials and strikers.
36. The CGT refers specifically to the use of the mass media during nation-wide or region-wide strikes to condition public opinion against the strikers, against the strike itself and, by extension, against the trade union organisation that called the strike or supports it. These campaigns are intended to distort or distract attention from the real reasons for the strike (e.g. the strike of SNCF and RATP drivers), to exercise what is nothing less than blackmail by making out that the strike is jeopardising the whole situation and future of the enterprise or of the national economy, to present the dispute as pursuing anti-national, harmful or at best selfish and baseless objectives and to present the strike systematically as illegal, to frighten public opinion or to encourage racists reactions (e.g. the Citroën dispute).
37. The CGT claims that ideological campaigns and legal battles are constantly being fought around the following themes: first, that the welfare of the enterprise must be the first consideration in any attempt to tackle the economic crisis and international competition, which means that the "freedom of the enterprise" must take precedence over the exercise of trade union freedoms and the right to strike (which is therefore assumed to be unjustified and harmful to the general interest as symbolised by the enterprise) and that the right to property must take precedence over the right to strike; second, that a strike is an illegal act or wrongful form of action that entails reprehensible behaviour - a view which is increasingly being supported by case law; third, that trade union activities must be assimilated to delinquent or violent action and that therefore, as most case law argues, the occupation of work premises is illegal and a form of delinquency. For the employers, any freedom of trade union expression that gives rise to controversy is tantamount to slander and therefore punishable by law.
38. The CGT further alleges that in a number of industries employers are introducing a "disputes management" policy with the support of a large number of specialists backed by general directives and advice tailored to each situation who, in liaison with the departmental and federal labour directorates, are implementing a veritable "plan of campaign" against strikers, union officials and staff representatives whenever a dispute arises. They are also pursuing a preventive policy known as "labour relations management".
39. The CGT claims that the employers have adopted a strategy, directed and co-ordinated by their organisations, whereby disputes are systematically taken to court. In the past, depending on the period, between 1 and 3 per cent of strikes reached the courts. Case law on strikes amounts to that which denies or prevents them. For some years now the situation has been completely reversed and strikes quite often spark off a series of lawsuits brought by the employer or even by non-strikers against the union leaders, the works union or an outside union (local union, departmental union, industrial federation) and against the strikers. Thus, throughout the dispute the employers bring preventive lawsuits to intimidate the workers, have certified reports drawn up by bailiffs so as to collect evidence for subsequent penal or civil liability suits and resort systematically to emergency procedures to obtain court orders to expel workers from premises. This is a diversionary tactic of intimidation or repression that is designed to force the trade union organisation to defend itself in lawsuits that are inevitably complex and expensive. By transferring the dispute to another level than that of the enterprises, where a solution should normally be sought through direct negotiation, it also provides the employer with a legal excuse not to negotiate.
40. For their lawsuits the employers employ the very costly services of bailiffs, who remain day and night in the enterprise during the dispute keeping a close watch on the union officials and strikers and recording their every movement so as to be able to draw up a completely one-sided report for use as evidence in subsequent lawsuits. Above all, employers have privileged access to the courts because of their technical and juridical expertise, the availability of highly operational disputes machinery, their access to computerised juridical data banks, their access to numerous specialised lawyers' offices, the possibility of writing off their legal costs as overheads, and so on. The inequality of means is considerble at every level; the costs involved alone are prohibitive for the workers and unions, whose financial resources are very limited and which are therefore often unable to bring lawsuits of their own or to engage the services of a lawyer to defend themselves.
41. The CGT points out more over that, when labour disputes occur, associations of non-strikers are set up under the auspices of the employer that are equipped with extensive resources for propagating pro-employer views, for taking action "in defence of the enterprise" and of "the freedom to work", for presenting themselves as victims of the strikers and for taking legal action against the strikers and against the trade union delegates. They also engage in acts of provocation and organise anti-striker commandos. Whether or not these associations have any legal status, their members benefit from the employers' help, support and, in any case, understanding in the lawsuits brought by them or on behalf of their members against the trade union representatives and strikers. Although they sometimes demand the expulsion of the strikers from the work premises, their aim is more often to have the trade union representatives and strikers convicted of violating "the freedom to work" and fined accordingly.
42. The repressive measures that employers take against union leaders, elected staff representatives and strikers take two forms, according to the CGT: dismissal for disciplinary or economic reasons, whenever circumstances permit, in which case they face a long period of unemployment; or a war of attrition within the enterprise, involving harassment, lay-offs, repeated disciplinary penalties, deliberate humiliation, isolation, transfers, freezing of careers and pay, all kinds of obstacles to the exercise of their functions, and so on. In addition, countless penal and civil lawsuits are brought against them systematically in order to substantiate the idea that, if the elected representatives are being brought before courts, it is because they have committed reprehensible acts and in order to have them sentenced to fines, imprisonment, court supervision, deprivation of civil rights and the payment of substantial damages, financial penalties and legal costs. The employers invariably initiate legal proceedings against union delegates as such or as individuals and against carefully picked strikers, making sure that they pay the fines to which they have been sentenced in provisional or final court decisions and thereby placing the workers and their families in dire moral and material straits.
43. Numerous civil liability lawsuits are brought by employers and non-strikers against works unions or trade union institutions outside the enterprise (branch unions, local or departmental unions, federations, confederations). Their strategy is one of open war and is a deliberate attempt to undermine the trade union movement that has developed since the the handing down of certain decisions by the Constitutional Council and the final Court of Appeal. These have often been based on alleged damages caused by strikes, but they also extend to normal, traditional forms of trade union action that are alleged to have caused an enterprise moral or material prejudice (slander, speech-making, visits to the union or works committee premises, etc). The offensive is led by powerful national enterprises (Renault, Air France, nationalised banks) and by large private groups (Trailor, RTC, GPP, etc), as well as by a large number of small and medium-sized enterpises benefiting from the logistic support of their employers' federation.
44. The CGT further alleges that employers have enlisted the support of armed commando groups, guards with police dogs, the enterprise's middle-management staff, private militia organised along quasi-military lines and commercial security-guard companies in order to expel striking workers by the use of force and violence, without any legal authority, in the course of brutal private police operations mounted in defiance of the law. Operations such as these have taken place in the presence of the police massed around the enterprise, who have refused to intervene to stop the violence on the grounds that they have received no orders from their superior officers or have been ordered to stay out of the fray (SEV-Marchal, Ducellier, etc). In some disputes the riot police has even been brought in to create a climate of tension, to impress public opinion or to mount particulary brutal operations to expel strikers (SKF, Ducellier, Plastiques de Gien, Cacharel in Nîmes, Renault-Le Mans, etc). Finally, the CGT states that enterprises frequently resorted to outside replacement labour during disputes; it points out that the legislation that prohibits employers from replacing strikers does not apply to every possible case (subcontracting, contracts for an unspecified period, temporary work contracts that started before the dispute occurred) and that such methods are thus encouraged.
45. In conclusion, the CGT states that the steady increase in the number of violations of the most elementary rights of workers is clear proof that a veritable offensive has been launched against trade union, collective and individual rights. These are no isolated and unconnected incidents; on the contrary, there is a close link between this deliberate strategy of private and public employers and a number of government practices.
46. In a communication dated 21 May l986, the CGT encloses a file on the dismissal of Alain Clavaud in which it points out that the trade unionist had been asked by his CGT union at Dunlop-MontluUon to answer questions put by a journalist in an interview for l'Humanité that was part of a newspaper survey of the working conditions of shiftworkers.
47. In its communication dated 16 September 1986, the CGT refers to other incidents that it considers to be in violation of trade union rights.
48. It cites the dissolution of the Lorient fire brigade decreed by the Minister of the Interior following a demonstration organised by the local CGT union on 8 October 1985 in support of a series of grievances, the most important of which concerned pay and pensions. The CGT points out that professional firemen are officially allowed to strike and to exercise their trade union rights but that they do so only with strict regard to their obligation to ensure the safety of the population. According to the CGT all eye-witness accounts and documentary evidence on film show that the police attacked the demonstrators and that the firemen, like others, were obliged to defend themselves against unjustified brutality; yet the Government denied the evidence, and claimed that it was the police that had been attacked. The firemen were also reproached for demonstrating in uniform, though no ban on doing so had ever been issued. The Government argued further that the firemen had refused to give courses in firstaid or to sit on first-aid examining boards - though this was voluntary and unpaid - and that they had refused to accept fire duty for certain theatre shows - though notice had been given well in advance so that the municipal authorities could take appropriate action. Following the order to dissolve the fire brigade, the mayor reduced the number of firemen from 92 to 76; the 16 firemen who were suspended were all members of the CGT and included all the officials of the trade union section. Only six of these (including just one official) were later taken on again, and the CGT claims that it is impossible in these circumstances to exercise the right of defence or the right to trade union representation. The officials who were suspended were found other work with the Lorient Municipality but lost a large part of their income.
49. The CGT also cites the case of the RTC enterprise of Dreux (Philips Group) where non-strikers were incited by the management and supervisors to claim damages for loss of wages from the trade union officials in the enterprise for instigating a protest strike against collective dismissals. The elected officials were accordingly ordered by the industrial tribunal of Dreux to pay jointly 400,000 francs to 350 non-strikers; as a result, mandatory deductions ranging from 600 to 2,500 francs were being made from their wages. An appeal has been lodged against this judgement but no ruling on the matter can be expected for several years.
50. The CGT refers further to the dismissal of a trade union delegate and official of the National Federation of Construction Workers employed by the Colas road building company of Caen who, as a result of an ill-chosen remark to one of his colleagues, was dismissed for gross misconduct, even though the labour inspectorate and the Ministry of Labour initially refused to authorise his dismissal.
51. At the ready-to-wear clothes company Goutille in Roanne, which at the time was in compulsory liquidation, the staff decided to recover the stock of clothing material and to place it under their own protection in order to prevent its being sold off cheaply and to get the company operating again, which they succeeded in doing. In spite of this, the Criminal Court of Rouen 28 months later condemned five workers to a suspended sentence of six months' prison and to a fine of 2,000 francs each and ordered them to reimburse the company receiver 964,975 francs. On appeal, the Court of Appeal of Lyon condemned four of the five workers to five years deprivation of their civic rights, fined one of them 2,000 francs and ordered all five workers jointly to pay 500,000 francs to the receiver.
52. Finally, like the Trade Unions International of Textile, Clothing, Leather and Fur Workers, the CGT referred in its complaint to the case of the Bata multinational enterprise's Marbot factory. In June 1985 Bata announced that it was reorganising its operations, as a result of which 150 workers, including two CGT delegates, were dismissed; authorisation to dismiss them, however, was refused by the labour inspectorate. When the Marbot factory subsequently went into liquidation, Bata had it taken over by one of its textile subsidiaries, the Compagnie FranUaise de Textile, which then dismissed a further 300 workers, including 21 trade union delegates. Because no authorisation had been requested for their dismissal, the delegates refused to leave the factory, whereupon the company resorted to electricity cuts and lock-outs in order to set the other workers against the union delegates. More over, the women concerned were particularly brutally attacked by a gang, as a result of which one had to be hospitalised and was off work for several weeks. Finally, the company requested authorisation to dismiss the workers but at the same time threatened to close down the factory if authorisation was denied. The labour inspector authorised only eight of the 21 requests for dismissal, yet the 13 remaining union delegates were prevented from returning to the factory. More over, following an appeal by the company, the Minister of Labour authorised the dismissal of the five principal CGT officials. The remaining union delegates are still being victimised by the management: four of them have been totally isolated and the remainder ordered not to leave their place of work. In addition, the other workers have been threatened with disciplinary action if they so much as speak to them.
B. The Government's reply
53. In its reply dated 5 August l986 the Government comments first of all on the highly polemical and general nature of the representation to the effect that anti-union repression in France since l984 has taken on extremely serious proportions and that the attacks are directed first and foremost against the CGT, its organisations, its leaders and the workers in their struggle to defend their legitimate economic, social and occupational rights.
54. Regarding the alleged infringement of trade union rights in the private and nationalised sector, the Government observes that the CGT begins by referring to specific Articles of Conventions Nos. 87 and 98 ratified by France and then goes on to cite "the progress made in legislation relating to trade union rights in l982-83", though regretting that "freedom of association is still founded on elected or appointed representatives and has not been extended, with more specific rights and guarantees, to wage earners or union members". According to the Government, the purpose of sections L. 122-45 and L.412-2 of the Labour Code is to protect unionised workers in regard both to their recruitment and to compliance with and the breaking of their contract of employment. Taken together these two sections render any employer who takes account of a worker's trade union membership in reaching his decision, specifically with respect to dismissal, liable to penal and civil damages. This protection has recently been broadened by the publication in l985 of two new Acts, one of which adds "the normal exercise of the right to strike" to the provisions of sections L.122-45 (Act No. 85-772 of 25 July l985) and the other of which declares null and void disciplinary measures that are contrary to the provisions of the said article (Act No. 85-10 of 3 January l985). The Government considers it inaccurate to claim that only elected or delegated workers' representatives are protected and that the workers' right to join trade unions is not based on specific rights and guarantees.
55. Regarding the dismissal of strikers, the winding up of certain enterprises as a form of penalty against union sections that the employer wishes eliminate and the freedom for unionised workers to express their union and political views, the Government states that for the most part the information provided is inadequate and therefore difficult to verify. However, some of the cases cited have been checked by the central labour administration and in the Government's view are very revealing. Concerning the filing for bankruptcy of the Coignet company and the setting-up of a new company excluding the union branch in which the CGT held majority representation, for example, it is true that in the course of the liquidation of Coignet and its takeover by a new Coignet company the Paris establishment was in fact closed down. The decision, however, was a management decision that no administrative authority has the power to contest. Moreover, there is no evidence of any link between the closing down of the establishment and the existence of a majority of CGT staff representatives; on the contrary, the overall situation of the enterprise suggests that the decision was for economic reasons and non-discriminatory. The Minister of Labour, with whom an appeal was lodged against the decisions taken by the competent labour inspectors with respect to the dismissal of the staff representatives, was at pains to maintain staff representation in the company's various establishments in the Ile-de-France and refused authorisation to dismiss six delegates, three of whom were employed at the Paris branch. The enterprise was accordingly obliged to find these three workers alternative employment within the company, which shows that the labour administration's fight against discrimination has been particularly effective.
56. As to the freedom of employees to express political and trade union views, the Government asserts that the Clavaud affair is an excellent example of the biased nature of the CGT's representation. The complainant refers to the dismissal of Alain Clavaud by the management of Dunlop-MontluUon (SUMITOMO) Group following the publication in the newspaper l'Humanité of the diary kept of his impressions at work, in which he described his life as a night shiftworker on an assembly line and argued that the proper discretion that he is accused of having "failed to observe" is a trumped-up charge that neither his job nor what he has said about it can possibly justify. In fact, according to the Government, this allegation is particularly ill-timed since the case is currently before the courts and, moreover, the public prosecutor's office has meanwhile ordered that Alain Clavaud be reinstated at Dunlop pending a court decision. The Minister of Labour had in fact previously called upon the management of Dunlop to reverse its decision and, following its refusal to do so, had made it quite clear that the decision would therefore rest with the industrial tribunal (tribunal des prud'hommes). As stated in the injunction cited in the file supplied by the CGT in support of its representation, Alain Clavaud applied to the industrial tribunal of MontluUon on 4 February l986 for an emergency interim ruling (demande en référé) that he be reinstated in his job as quickly as possible. The industrial tribunal, at a hearing on 20 February, considered that, in order to assess and establish the manifestly illegal nature of the penalty imposed on the employee, it was essential to examine the reasons given for his dismissal and to determine whether real and serious cause did not exist that rendered an interim ruling inappropriate. The industrial tribunal consequently declared itself unqualified to issue an interim ruling and ordered the parties, should they so wish, to bring the case before the tribunal for a ruling on its merits. The Court of Appeal subsequently confirmed this decision and only then did Alain Clavaud apply to the industrial tribunal of MontluUon for a ruling in accordance with the normal procedure. The tribunal met on Monday 23 June and, an attempt at conciliation having failed, heard the parties to the dispute. Alain Clavaud applied for the annulment of the decision to dismiss him, his reinstatement in his job and the reimbursement of the wages corresponding to the period during which he had been prevented from working. After deliberation, the tribunal postponed its decision until 29 September l986.
57. The Government considers that it has done all in its power to obtain Alain Clavaud's reinstatement while respecting the principle of the independence of the court. It states that it is now for the competent authority to rule on the matter and that the CGT's complaint is premature.
58. In its communication dated 16 January 1987 the Government notes a number of new developments. The industrial tribunal on 24 November 1986 declared Alain Clavaud's dismissal null and void and ordered his employer to reinstate him or to pay him 500 francs a day from that date. Although the firm's lawyer stated that he would appeal against the judgement, the industrial tribunal has ordered its immediate enforcement and Alain Clavaud's reinstatement is therefore mandatory. Dunlop Sumitomo has also been ordered to pay Alain Clavaud compensation amounting to the wages not paid since 24 January, a symbolic franc in damages and 3,000 francs in legal costs.
59. Regarding the trade union situation in small enterprises, the Government notes the CGT's regrets that the attempts to hold elections for shop stewards should have failed "because of the labour administration's restrictive interpretation of the texts". For the Government this complaint quite obviously cannot be based on non-compliance with the international Conventions ratified by France as they contain no specific provision on the subject. It explains that French legislation provides only (section L.421-1 of the Labour Code) for the possibility of holding such elections, that hindrance of the law is a punishable offence in France (section L.481-2) and that it is for the trade unions to bring the matter to the attention of the labour inspectorate if they consider that a problem has arisen in an enterprise, whether it be large or small. Under sections L.481-2, L.482-1 and L.483-1, impeding the designation of trade union delegates, the election of staff delegates, the constitution of works committees and the regular exercise of the functions of these representative bodies is punishable by imprisonment and/or a fine.
60. Regarding the right to organise and constitute trade union sections and to set up representative institutions, the Government observes that any disputes can be settled simply by bringing the matter to the attention of the labour inspectorate. In the case of CGEE-ALSTHOM cited by the CGT, following the action taken by the CGT National Union of Trade Unions on 12 December l984 an extensive investigation was conducted by the labour inspection services in the various CGEE-ALSTHOM establishments where infringements of freedom of association were alleged to have occurred. The investigation brought to light the existence of genuine difficulties encountered by trade union sections and representative staff institutions in the establishments at Levallois, Nanterre, Bègles and Carpiquet inter alia. The competent labour inspectors accordingly drew up a report on the various instances where the constitution or regular functioning of these bodies had been impeded. In their capacity as mediators, the labour inspectors were able to resolve a certain number of disputes, specifically in the establishment at Ivry. Moreover, the labour inspectorate and the Minister, when requested to authorise the dismissal of staff representatives, exercised strict control over any discrimination. In l985, the dismissal of three trade union delegates from the establishments of Carpiquet, Nanterre and Belfort was accordingly refused on appeal.
61. As to the "highly irregular situation as regards trade union freedoms and industrial relations at Citroën, Peugeot and Talbot" denounced by the CGT, the Government feels that due account must be taken of the way the labour situation and industrial relations within the PSA group have evolved since l982. Although the labour dispute at Citroën had at the time reached a point where a mediator and court representative had had to be appointed to organise the election of staff delegates, the industrial relations situation has since returned to normal. Elections of workers' representatives, which prior to l982 had given rise to extensive controversy, now take place without any major problem having been brought to the attention of the labour inspection services. The same applies to Talbot where, after the labour situation had gone through a difficult period in the l960s, there is no longer any impediment to the constitution and regular functioning of representative staff institutions. In the case of Peugeot, the Government is not aware of any matter having been brought to the attention of the labour inspection services by the CGT, although a complaint by another trade union organisation in l985 regarding the establishment at Mulhouse did lead to the Minister of Labour requesting its external services to conduct an inquiry. After establishing that the right of freedom of association was indeed being infringed, the labour inspectorate drew up an initial report against the manager of the establishment. According to the Government, although the staff representatives in certain establishments do indeed encounter problems from time to time (which are in any case investigated by the labour inspection services whenever they are drawn to their attention), there is at present no major obstacle to the functioning of representative staff institutions in any of the three enterprises. With regard to disciplinary action and, specifically, the dismissal of union members, apart from possible appeals to the labour court judge no dispute has been brought to the attention of the labour inspection services. As to the dismissal of staff representatives, on the other hand, the Minister of Labour has been called upon to rule on requests for authorisation to dismiss delegates at Citroën for economic reasons. Following an appeal concerning exclusively CGT and CFDT delegates, the Minister refused on grounds of non-discrimination to grant the request. The Government concludes by stating that the administrative authority has invariably enforced the laws and regulations respecting the constitution and regular functioning of representative staff institutions within the PSA group and that the latter has not disregarded its rights and duties with respect to dismissals.
62. On the subject of trade union premises and the means of action of trade union organisations, the Government notes that the CGT's representation refers explicitly to Articles 1, 2, 3 and 4 of Convention No. 87 and asserts that, in so far as freedom of association presupposes the existence of adequate means of action, it is being hindered. It points out that, although the said Articles provide for the right for workers and employers to establish organisations of their own choosing, to elect their representatives in full freedom and to organise their administration and activities without being "liable to be dissolved or suspended by administrative authority", they nowhere suggest that the State or local communities should actually provide them with special facilities. The Government does, however, recognise that municipalities have traditionally offered trade union organisations certain advantages and have willingly made premises and facilities available to them free of charge and it can appreciate that the organisations should have come to take them for granted.
63. The Government is of the view that, where a change of majority in a municipality provokes a dispute, the administrative tribunal must distinguish between voie de droit (the normal legal procedure) and voie de fait (entailing a procedure designed to correct certain particularly flagrant administrative irregularities) and asserts that it has in fact done so, as can be seen from the Levallois-Perret job centre incident of which the CGT offers only an incomplete account. According to the Government, the Mayor of Levallois-Perret informed the secretary of the administrative body of the job centre, in a letter dated 22 July l983 and by decision of the municipal council of 28 September l983 modifying the allocation of communal assets, of the transfer of the general directorate of the municipalities's technical services to the existing premises of the job centre, without proposing any other accommodation. In the opinion of the trade unions concerned (CGT, CFDT, CGC, FO, SNI), this decision entailed purely and simply abolishing the Levallois-Perret job centre which had been created by municipal decision on 9 February l966. Considering that there were no legal grounds for implementing the 28 September l983 decision by force, the CGT appealed to the administrative tribunal of Paris to have it revoked. In a ruling issued on 7 November l984, the administrative tribunal ruled in the CGT's favour on the grounds that the decision to reallocate premises implied a decision to abolish the job centre, whereas no such decision had been taken by the council. Consequently, by decision of 28 March l985 the municipal council of Levallois-Perret revoked the earlier (6 March l966) decision to create the job centre and thus abolish the centre as such. The municipality meanwhile offered the various trade union organisations two premises in Levallois, one of which is occupied by the CGT local union of Levallois and by CFDT activists. The CGT local union has expressed its dissatisfaction with the situation, mainly because of the small size of the premises and the lack of any meeting room. The Government states, however, that since its decision of 28 March l985 the legal position of the municipal council is much better than before and that the present situation is liable to persist despite the lodging of a further appeal with the Council of State. The Government appreciates that the situation does not meet with the CGT's satisfaction but feels that, in so far as the juridical irregularity denounced by the administrative tribunal of Paris has been corrected by a new decision of the municipal council pursuant to the tribunal's ruling, it is hard to see how the present situation can be reversed other than by appeal once again to the administrative tribunal. The fact is that the CGT local union has been rehoused by the municipality and that is what counts.
64. Regarding the Paris job centre, the Government notes the CGT's allegation that the municipality has initiated proceedings "in an attempt to strip it purely and simply of its right to be represented on the centre's administrative board". While recognising that a recent order issued by the Mayor of Paris has modified the distribution of seats on the administrative board in the light of the results of the 1983 trade union election to the local family allowance board and that, as a result, the CGT has lost its traditional majority, the Government states that the decision, a prerogative of the Mayor of Paris recognised by a Decree of 3 April l970 amended in l978, cannot be modified by any administrative authority and that only the administrative judge is empowered to rule on the legality of the decision. No appeal has been lodged, however.
65. The Government notes that the CGT offers no evidence that other job centres have suffered unduly from the attitude or intervention of municipalities elected in l983 and that no complaint to such effect has been brought to the notice of the labour inspectorate.
66. As to the infringement of the rights of workers' representatives in private and nationalised sectors, the Government declares that Convention No. 135 to which the CGT refers provides that "workers' representatives in the undertakings shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers' representative or on union membership or participation in union activities". It explains that in practice no workers' representative can officially be dismissed, whether for personal or for economic reasons, without prior authorisation of the labour inspector. An appeal may in turn be lodged against this administrative authorisation either through administrative channels (with the relevant minister) and through judicial channels (with an administrative court). The CGT, notes the Government, claims that these internal administrative procedures "do not in point of fact really guarantee workers' representatives satisfactory protection against threats of dismissal for economic or disciplinary reasons" and argue that the Ministry of Labour bears some of the responsibility in this respect, "both because too few officials are designated to investigate such matters and because the Ministry underestimates the extent and gravity of the employers' attack on workers representation, and specifically on members of the CGT, the full implications of administrative decisions and their direct consequences for trade union activities in the enterprises where dismissals have been authorised", adding that the central administration, acting directly under the Minister's orders, "is not as firm as it should be in ensuring that its various services are properly vigilant".
67. According to the Government, this shows how in its representation the CGT is constantly switching from one line of argument to another, treating incidents that should be judged in the light of the economic or disciplinary situation of each individual worker as part and parcel of a trade union political struggle. French labour legislation contains specific provisions protecting staff representatives, whether they be staff delegates (section L.425-1), members of works committees (section L.436-1), members of safety and health committees and committees on working conditions (section L.236-11) or even candidates for election to these posts, workers who have requested the holding of elections on former members of such committees (for six months following expiry of their term of office). Trade union representatives appointed in accordance with legal provisions benefit from very similar protection (sections L.12-18 and L.437-1), as do representatives who have been elected or appointed in accordance with the provisions of an agreement. The Government goes on to explain that the fact that administrative authorisation has to be obtained to dismiss any protected person does not, however, mean that they cannot be punished or dismissed for grave misconduct or for general economic reasons. The necessary involvement of the labour inspectorate and the possibility of appealing against the decision of the labour inspector through administrative channels or through judicial channels (to the administrative authority) makes it more difficult to dismiss such people but is in no way intended to make it impossible. According to the Government, the CGT's reference to the increasing number of appeals has no great significance as an argument since the situation is probably a reflection of the growing economic crisis and of its repercussions on employment. It is only on the merits of each case that certain decisions and certain judgements can be contested - and this, according to the Government, the CGT does at considerable length - but it is not possible to accept the Confederation's overall statistical assessment. Once all the forms of appeal provided for by the law have been exhausted, one has to abide by the final judgement, unless of course some new facts justifying a review of the case should come to light. The Government explains that the administrative judge nowadays does not merely try to establish whether the accusations brought against a worker are based on fact, and whether there has been an abuse of administrative authority, an error of law or a manifest error of appreciation but also himself assesses the seriousness of the accusations brought against the worker and decides whether or not they are of sufficient gravity to justify his dismissal. If the proposed dismissal is on economic grounds, the administrative judge likewise verifies the relevance of the economic reason given. The Government concludes with the observation that 105,129 regular members of work committees were elected in 1982-83 (with roughly the same number of deputy members), that there were 44,140 trade union delegates in 1981, that a September 1985 survey showed that 308,000 workers were staff delegates and that the total number of dismissals for economic reasons was 366,173 in 1983 and 429,386 in 1984. Given these figures, the Government considers that the CGT's calculation that 10,500 elected workers' representatives and union delegates were dismissed between 1978 and 1982 (with administrative authorisation) for economic and non-economic reasons does not seem abnormally high.
68. As to the Creusot-Loire incidents cited by the CGT, the Government states that the labour inspectorate and the Minister of Labour, to whom requests were addressed for authorisation to dismiss the staff representatives of various establishments for economic reasons have examined, case by case, the exact circumstances in which each job was suppressed, the possibility of finding the worker alternative employment and the possible existence of anti-trade union discrimination. As a result of this strict control, the dismissal of some CGT delegates (at Châteauneuf, for example) has been refused. As to the decisions to authorise dismissal that have been taken after careful examination, the workers affected have exercised their rights by lodging an appeal with the administrative judge.
69. The AFO company (Saint-Nazaire, Brest, Dunkirk) has had to cut back its staff considerably during the past two years because of serious economic difficulties. For the most part, the staff representatives affected by these dismissals volunteered to leave the enterprise, either to take advantage of retraining leave or because they were offered employment elsewhere. In any case, the labour inspectors who were called upon to rule on the dismissals were not informed by the delegates of any discriminatory action that may have been taken against them.
70. At ECVI (Bordeaux), the administrative appeal that was lodged against the decision to authorise the dismissal of two staff representatives among 30 dismissed workers challenged only the genuineness of the economic reasons invoked by the company and made no reference whatsoever to any discrimination.
71. At Egnec-Pessac, following a dispute that arose after one of the two companies created in 1984 filed for bankruptcy, part of the dismissed staff was re-employed following the subsequent merger. Since the CGT union did not lodge an appeal with the public authorities in this connection, it cannot blame them for not having taken action.
72. At Derruppe Le Bouscat, the enterprise shut down operations and dismissed the entire staff after filing for bankruptcy and the administrative authority was therefore not called upon to rule on the dismissal of the staff representatives. The departmental director of labour and employment concerned is currently attempting to persuade the company that has taken over Derruppe to fulfil its commitment to take on 80 of the former employees.
73. In the case of FOP, the labour inspector, following an appeal against an initial decision not to authorise the dismissal of the CGT activist, subsequently authorised the measure in the light of the pressure brought to bear by the enterprise that was considering taking the company over. The Government recognises that this "decision of convenience" was of questionable legal validity and was duly annulled by the administrative judge (the matter was never brought before the Minister himself).
74. The Bata-Marbot Company with over 1,000 employees went into liquidation in November 1985 after the collective dismissal of an initial 110 workers, including six staff representatives, had proved insufficient. The receiver thereupon requested the labour inspectorate's authorisation to dismiss 21 staff delegates following the suppression of 227 jobs of unprotected workers. Of the 21 requests, 14 (13 of which concerned CGT delegates) were refused. On appeal, the minister authorised the dismissal of five CTG staff representatives. All in all, 337 unprotected workers were dismissed as against 18 staff representatives. The 812 employees retained comprised representatives of all the trade union organisations initially present in the enterprise, including the CGT. In the Government's view, the fact that delegates included in the request for collective dismissal were promoted is in itself enough to show that no discrimination was involved.
75. Regarding the other forms of "repression" denounced by the CGT, such as the refusal to authorise access to "defence" areas, the Government explains that the law lays down specific conditions for access to areas classified as "defence" areas for the staff representatives of enterprises engaged in national defence work. The existence of these conditions, and specifically the requirement that such visits be requested in advance or that the staff representative be accompanied by an authorised person, has always been fully accepted by all trade union organisations and the rare disputes that have been brought to the Government's attention (e.g. Matra Centre Equipement at Vélisy) have concerned a staff representative's refusal to comply with these requirements.
76. Regarding the isolation of union activists, the Government states that, in the great majority of cases where a delegate is given no work or is isolated within an enterprise, the labour inspectors are duly informed and submit an official report on the matter. Moreover, in his emergency interim ruling, the competent judge generally imposes the continuation of the contract of employment on pain of a fine. Situations such as this can therefore be remedied, as the law provides both civil and penal forms of appeal. The Government assures the Committee that the problem encountered by the member of the CEF employed by the Selnor-Lesquire company has now been settled.
77. As to the creation of "special sections" at Ratheau (La Courneuve), a labour inspector acting on information received from a union delegate visited the establishment where he reported the existence of a "disciplinary" workshop. Following his report, the three union delegates assigned to it left the workshop where considerable tension had developed.
78. With regard to negotiating rights, the Government points out that the Act of 30 November 1982 containing new provisions respecting collective bargaining lays down the procedure for the voluntary negotiation of collective agreements. It describes inter alia the procedure for extending agreements, whereby the provisions of a sectoral, occupational or inter-occupational agreement may be made binding on all employees and employers falling within the scope of the agreement, by order of the Minister of Labour, after a substantiated opinion has been expressed by the National Collective Bargaining Committee (section L.133-8 of the Labour Code). The Labour Code states (section L.133-11): "Where an objection is lodged in the manner prescribed in the first paragraph of this section (i.e., if the text has not been signed by all the most representative organisations concerned), the minister responsible for labour may once again consult the Committee on the basis of a report specifying the scope of the provisions to which objection has been taken and the consequences of a possible extension. The minister responsible for labour may decide in favour of an extension after considering the new opinion expressed by the Committee."
79. Concerning the opportunity for a minority representative organisation to sign validly a collective agreement against the express wishes of the majority representative organisations, the international texts referred to by the CGT set out a general principle of open discussion and co-operation on an equal footing (Declaration of Philadelphia and ILO Constitution). Convention No. 98 (Article 4) and Recommendation No. 91 (Paragraph 1(1)) stipulate that national laws or regulations must contain provisions appropriate to the implementation of the principle of collective bargaining. As to the status of the signatories, Recommendation No. 91 states that the workers' organisations parties to an agreement must be representative. By the Act of 30 November 1982, French legislation implements these broad principles. The provisions adopted are perfectly compatible with Convention No. 98 and Recommendation No. 91 whose very general wording makes no reference to the majority representation or otherwise of any representative workers' organisation that may be party to an agreement.
80. Regarding the extension of collective agreements concluded by minority representative organisations, Recommendation No. 91 stipulates that each country may determine the measures to be taken to extend the application of all or certain stipulations of a collective agreement to all the employers and workers included within the industrial and territorial scope of the agreement (paragraph 5(1)). French legislation not only implements the principle, which is merely suggested in the Recommendation, but has adopted provisions to ensure that it is applied in accordance with the international text. The consultation of all the workers' representatives is a legal requirement and a collective agreement can be extended only if it has been signed by a representative workers' organisation. According to the Government, the example cited by the CGT of an agreement signed in the chemical sector on 25 March 1982 and extended by order of the Minister of Labour against the express wishes of the majority of the trade union organisations cannot therefore be invoked in support of a representation before the ILO.
81. As to the CGT's allegation of discrimination between workers' organisations and employers' organisations, the Government points out that, just as an agreement signed by a representative workers' organisation can be extended in spite of the opposition of the majority of the representative trade union organisations within the scope of the agreement, so an agreement signed by a representative employers' organisation may be extended despite the opposition of other professional organisations, provided of course they are all representative of the same sector. The CGT's assertion that this implies discrimination between employers' and workers' organisations is therefore inaccurate. French legislation merely applies the general principle of extension as laid down in Paragraph 5(1) of Recommendation No. 91, i.e. that extension is possible within the industrial and territorial scope of the agreement.
82. In the case of enterprise-level agreements that depart from the laws or regulations in force, the Government confirms that such agreements may be contested only within eight days of their signature and provided a written and substantiated objection is lodged by one or more organisations that together have polled over half the ballots of the registered voters in trade union elections (section L.132-26 of the Labour Code). The purpose of this provision is both to facilitate the adoption of enterprise-level agreements between employers' and workers' organisations and to prevent agreements that depart from the laws or regulations in force from being concluded without sufficient justification. Since workers' organisations often take different if not opposing stands, the legislature has chosen to encourage even minimal consensus as far as possible, in accordance with the provisions of the aforementioned international Convention.
83. Concerning the alleged repression of the right to strike and of freedom of association, the Government states that the CGT's reference to Conventions Nos. 87 and 98 is somewhat surprising as they contain no allusion to the right to strike which is not even cited. The CGT considers that the right to strike is inseparable from freedom of association. This, however, is not the view of the Court of Appeal which has stated on several occasions that the right to strike is an individual right and that the trade union does not act as the strikers' principal but has a separate legal status from that of its members. The Preamble of the French Constitution of 1946, which the 1958 Constitution cites, recognises the right to strike but also its limitations, since it stipulates that the right to strike must be exercised within the framework of the laws that govern it. The Council of State has added to this that recognition of the right to strike cannot have the effect of denying the limitations by which this right, like any other, must be bound in order to avoid abuse or its being exercised in defiance of public order. In the absence of any legal regulations on the subject, case law has established the boundary between what is legitimate and what is not.
84. The Government recognises, however, that the CGT's comments warrant a reply inasmuch as the protection of trade union freedoms comprises the protection of the right to strike of workers, and particularly unionised workers.
85. The Government notes that the CGT makes a general attack on employers whom it accuses of taking advantage of "their economic strength, the institutional machinery and whole battery of existing legal procedures and the mass media". It claims that the Government is not taking any action to prevent this and, for example, refuses to "respond favourably to the CGT's request that it introduce a Bill repealing the 120-year-old section 414 of the Penal Code that has been revived to justify on legal grounds the action taken by non-strikers against strikers and union delegates", adding that "employers are using non-strikers more and more often to spearhead their offensive and to initiate legal proceedings against union officials and strikers".
86. Regarding the archaic nature of section 414 of the Penal Code, which punishes the abuse of the right to strike whereby freedom to work is impeded by bringing pressure to bear on non-strikers, the Government recalls that the section has been amended and rejuvenated by a much more recent Act of 29 December 1956.
87. As to the claim that employers have adopted a strategy "whereby disputes are systematically taken to court", the Government replies that the whole purpose of labour legislation is to substitute the legal channels of conciliation or court arbitration for a trial of strength. The widespread and systematic use of penal and civil proceedings by employers merely suggests that trade unions sometimes lose the initiative in labour disputes. Moreover, if employers make sure that the fines imposed in provisional or final court decisions are indeed paid, it is merely by virtue of the perfectly clear principle that court rulings must be complied with (save for the immunity of trade union assets from attachment). Yet the CGT takes up the trade union cry against the now frequent tendency of company managers to initiate civil liability proceedings in order to obtain a court ruling against strikers or against the union organisations that have called a strike. When in the course of the strike a worker or trade union commits an illicit act, he or it may be made to pay damages. Thus, in a ruling of 6 March 1959, the High Court of Le Mans upheld the liability of the CGT union at Renault in Le Mans for having organised a go-slow strike, which case-law has invariably declared to be illegal. Inasmuch as the right to strike is not a trade union right, a trade union cannot assume the responsibility of calling an illegal strike without committing an offence. The court therefore did not uphold the claim of the trade union against which civil proceedings were being brought that the suit brought against them constituted an infringement of freedom of association or a form of discrimination. The Government notes, however, that the immunity of trade union assets from attachment that was introduced in the Labour Code by Act of 12 March 1920 (section L.411-12) is only partial and that the Court of Appeal (Criminal Chamber, 24 January 1978 RMVR) dismissed the trade union's argument that the suit brought against it was an abuse of the law because its assets were immune. The court considered that the immunity from attachment was not absolute and that the legal provision invoked, in so far as it related only to means of enforcement, could not have the effect of exempting trade unions from civil liability.
88. Furthermore, the Constitutional Council considered in a ruling of 22 October 1982 that it was not possible to deny persons who have suffered damages the right to initiate legal proceedings or seek redress without violating the principle of equality. In its subsequent rulings (Social Chamber - CGT union at the Trailor factory of Lunéville, 9 November 1982), the Court of Appeal considered that trade unions should be deemed liable for events in which they have actually participated if the events constitute a penal offence or cannot be ascribed to the normal exercise of the right to strike.
89. Concerning the various complaints voiced by the CGT, the Government states that it has no authority over the mass media, that the radio and television service in France is supervised by an independent commission, that the press is free and that the concentration of newspaper groups is restricted by law. It is up to the trade union organisations themselves to bring their demands and claims to the notice of the public.
90. As to the alleged ideological campaign being waged by employer circles within the framework of the law in order to ensure that the "freedom of enterprise" takes precedence in their attempts to tackle the economic crisis and international competition, the Government states that any trade union organisations that consider themselves slandered are entitled to a right of reply in the written or spoken press and to initiate legal proceedings. If a public opinion campaign sometimes tends to assimilate a strike to an illegal act or wrongful form of action and if that view "is increasingly being supported by case law", then it is for the union organisations to make a clear distinction between the strike - i.e. the collective and concerted withholding of labour in pursuit of specific occupational demands - which is protected by the Constitution, by the law of the country and by case law, on the one hand, and, on the other, the illegal acts by which it is sometimes accompanied (serious offences, criminal acts, assault, illegal confinement) and which can incur the penal or civil liability of the workers. As to the occupation of work premises, case law makes a distinction between occupation which is restricted to the working hours in certain parts of an enterprise and does not prevent non-strikers from working and occupation outside normal working hours which does, the latter constituting a serious offence and, possibly, a violation of the right of ownership and of the non-strikers' freedom to work. This often, but not always, leads to an expulsion order. Since 1974, especially, the case law that has developed from the ordinances issued by the President of the High Court of Bobigny, following amendments to the Code of Civil Procedure in 1971 and 1973, reflects the determination of judges called upon to make emergency interim rulings to take into account the objectives of the strikers by appointing an expert to bring the employer to the negotiating table, no expulsion order being issued until the judge has examined the expert's report. Execution of the court expulsion order, moreover, is not automatic, as the administrative authority is required to assess the prevailing circumstances and is empowered to refuse the use of police force so long as it deems that a threat to law and order exists, as stipulated in a ruling of the Council of State (Saint-Charles cardboard factory, 1938). The administrative authority can therefore choose not to take action, even though the State may thereby incur a liability.
91. Regarding the introduction by employers of a "disputes management" policy and of the preventive policy known as "labour relations management", the Government states that there is nothing illegal in this provided it does not go outside the law.
92. The Government feels that employers cannot be blamed for "taking disputes systematically to court" since the whole purpose of labour law is to substitute legal channels for direct action in labour disputes, the ground rules are the same for all the social partners and it is up to them to use those legal channels to their best advantage.
93. The Government recognises that there may be some inequality in financial and other resources between workers and employers but this does not in any way stem from the law itself. Case law even goes so far as to ban lock-outs, which are legal only in the event of force majeure or redundancy for technical reasons. In the particular case referred to, there is no "symmetry" between a strike and a lock-out and both statute law and case law tend in fact to favour the workers rather than the employers.
94. With regard to the creation of associations of non-strikers in the course of labour disputes, the Government explains that these are perfectly legal. Though a civil court action brought by an employer for infringement of the freedom to work may be irreceivable, it may be quite valid if brought by workers - whether or not in association - who are prevented by the strikers from continuing their work. Moreover, any strikers who are victims of illegal or punishable acts committed by a body formed by an association or by any physical person has access to the normal legal channels and, inter alia, is entitled to appeal to the competent judicial authority.
95. As to the allegation that employers resort to lawsuits systematically, the Government recalls that trade union leaders and elected staff representatives are protected by a special procedure against dismissal, for which the authorisation of the labour inspectorate is required, and that the possibility exists of lodging an appeal against the decision of the labour inspectorate either through administrative or through judicial channels. It is in any case not true to say that penal and civil lawsuits are brought systematically as there are in fact only a few dozen court decisions per year relating to civil liability in respect of a strike. In 85 per cent of the cases, any fines that are payable as the result of a lawsuit are never actually collected.
96. The Government observes that it has already referred to the 1982 decisions of the Constitutional Council and Court of Appeal upholding the civil liability suits brought by employers and non-strikers against works unions and trade union bodies outside the enterprise in which a serious offence or infringement of penal law is involved. It points out that the CGT - like any other legal entity or physical person in a State of law - must abide by those decisions, which do not conflict with any international Convention ratified by France but are directed at abuses of the law in accordance with a jurisprudence that has been quite consistent in this regard.
97. With respect to the intervention or lack of intervention of the administration in collective disputes, the Government observes that the decision to use the police to enforce a court decision such as an expulsion order or to restore law and order is left to the discretion of the prefect, under the supervision of the administrative judge. The circumstances in which police are or are not involved may indeed give rise to an appeal to the administrative courts. In the particular cases cited by the GCT, the police forces intervened in the following circumstances:
- At SKF the May and June 1984 incidents were provoked by demonstrators, most of whom were not employed by the enterprise, in an attempt to reoccupy by force premises that had previously been evacuated peacefully by the police on 28 May 1984, in compliance with an expulsion order issued by the President of the High Court of Créteil.
- At the Cacharel factory in Saint-Christol-les-Alès the police intervened without incident on 25 May 1985 to evacuate the factory premises, pursuant to a court decision of 2 May 1985.
- As to the 8 October 1985 dispute at the Renault factory in Le Mans, contrary to the CGT's statement in its representation the police were not called in as the local prefect chose to allow a stay of execution of an expulsion order that was issued on 11 October in order to permit negotiations between the parties to the dispute. As a result of these negotiations, a draft agreement was eventually signed and an immediate return to work took place on 15 October.
98. Finally, the Government states that the allegation that employers have been encouraged to replace strikers by outside workers - mainly temporary workers - is untrue. Even prior to Ordinance No. 82-131 of 6 February 1982, case law had restricted the possibility of replacing strikers by temporary workers recruited before the dispute by prohibiting their assignment to tasks other than those stipulated in their contract of employment (decision of principle issued by the Criminal Chamber of the Court of Appeal on 2 December 1980). The 1982 Ordinance, like the Act of 25 July 1985 (section L.124-2-3-1), reinforced the earlier ban by stipulating that temporary workers may not be called upon to replace a worker whose contract of employment has been suspended as a result of a collective labour dispute in the employing establishment. On the other hand, the replacement of strikers by employees of a subcontracting enterprise or by workers on a fixed-term contract is quite legal.
99. In its communication dated 16 January 1987 the Government submits its observations on the additional information communicated by the CGT and on the complaint presented by the Trade Unions International of Textile, Clothing, Leather and Fur Workers.
100. Regarding the dissolution of the Lorient fire brigade, the Government states that the decision was taken as a result of a whole series of breakdowns in operations that showed that the brigade was no longer in a position, under normal circumstances, to serve the nine communes for which it is responsible. Between 1980 and 1983 both senior and junior firemen refused to obey orders, went on "administrative strike" as soon as their chief entered the fire station, distributed hostile leaflets, put up signs around the station demanding his resignation, etc. When a new chief was appointed in 1983, there seemed every reason to expect the Lorient fire brigade to begin operating normally again, especially as new recruits were taken on, the living quarters were modernised and a much improved system of working hours was introduced. Yet from 1984 onwards the chief came up against new difficulties: refusal to obey orders, refusal to organise courses in first-aid, refusal to sit on departmental first-aid examining boards, refusal to take part in manoeuvres ordered by the higher authority, refusal to accept fire duty for certain theatre shows. Finally, trade union representatives of the first-aid centre of Lorient called on professional firemen in the departments of the west of France to hold a demonstration on the occasion of a visit by the President of the Republic on 8 October 1985; the meeting point for the demonstrators was the first-aid centre. The firemen completely ignored the solemn warning by the Director of Public Safety that people in uniform are expected to behave in a dignified and discreet manner. Ignoring police orders, the demonstrating firemen attempted to break through safety barriers that had been set up all along the route of the presidential cortege. They then confronted the police with iron bars, firing distress flares straight at them and throwing various projectiles. As a result of this inadmissible state of affairs, which was covered live by television and thus seriously undermined the honour of the fire-fighting service, reinforcements had to be called in to restore order. The firemen's violence and fury - which no longer had anything to do with the right to demonstrate that the Government has always guaranteed - was such that 30 members of the police force were wounded, including four who were so seriously hurt that they were unable to return to work for more than 10 days.
101. In the Government's view this kind of behaviour, which has been going on in various forms for many years, is incompatible with the operation of a public service that is responsible for insuring the safety of people and assets; it was therefore necessary to dissolve the fire brigade, which could quite honestly be considered to have broken down completely.
102. The decision to dissolve the brigade was taken by the Minister of the Interior at the suggestion of the Prefect of the Morbihan department and in the light of the deliberations of the intercommunal public utilities board for the Lorient area on 11 October 1985 calling for its dissolution. The Government emphasises that the decision is not a disciplinary measure; the professional firemen of the former brigade are still employed by the commune and all those who have not been taken on in the new brigade have been offered alternative employment.
103. Regarding the RTC affair in Dreux, the Government repeats the point made in its previous communication that, under section 1382 of the Civil Code, any employee or trade union found guilty of committing an unlawful act (such as infringing the right to work) in the course of a strike may be ordered to pay the corresponding damages, and it is abundantly clear from the wording of the judgement handed down by the administrative tribunal of Dreux, which was presided over by a judge with a casting vote and which issued its definitive ruling on 19 September 1985, that the defendants were guilty of violating the right to work, inasmuch as the strikers against whom proceedings had been initiated had prevented non-strikers from entering the factory and goods from entering or leaving and inasmuch as the representatives against whom proceedings had been brought did not seriously deny that they had impaired the freedom of movement of persons and goods. Given that the convicted employees have committed a crime, that the non-strikers have suffered a loss and that there is a causal relationship between the two, the legality of the judgement can hardly be contested from the juridical standpoint.
104. The Government adds that only recently the Constitutional Court was called upon to examine an Act limiting the possibilities of initiating legal proceedings against employees in order to claim damages as a result of a collective dispute except in the case of damages caused by a criminal offence, and in 1982 it annulled the disputed section of the Act, considering that the legislature could not deny the right of certain persons who have suffered a loss to seek redress. The relevant legal principles as they relate to French law have thus been clarified in considerable detail.
105. In the case under consideration, the infringement of the right to work, the impairment of the free movement of persons and goods and the civil liability of those convicted are all attested by the very wording that appears in the judgement handed down by the industrial tribunal. An appeal has been lodged against the judgement and it now remains for the highest judicial authority to rule on the matter.
106. With regard to the dispute between Mr. Morlier and the Colas company, the sequence of events set out by the CGT does not call for any particular comment by the Government: on 10 November 1981 and 15 November 1984 the labour inspectorate, which had been requested on a number of occasions by the Colas company to authorise the dismissal of Mr. Morlier, a trade union delegate and elected staff representative, on account of his use of insulting language to another employee, refused to give its authorisation. On an appeal submitted through administrative channels, the Minister of Labour confirmed the labour inspectorate's decision on 3 May 1985.
107. In two judgements handed down on 3 July 1984 and 4 February 1986 the Administrative Tribunal of Caen, which was called upon to rule on these successive decisions, annulled the decisions taken by the administrative authority on the grounds that the alleged facts, which were not contested, constituted a fault of sufficient gravity to justify dismissal, that the dismissal did not stem from the normal exercise of Mr. Morlier's official mandates and, finally, that no motive of general interest relating to the maintenance of staff representation or public order could be invoked.
108. Independently of one another, the CGT and the Ministry of Social Affairs and Employment lodged an appeal against this judgement with the Council of State. This procedure, however, does not have the effect of suspending execution of the judgement and, consequently, when the question of enforcing the judgement handed down by the Administrative Tribunal on 4 February 1986 was brought once again before the labour inspectorate by the Colas company, the labour inspector had no alternative but to authorise Mr. Morliers' dismissal on 16 June 1986 by virtue of the res judicata.
109. Meanwhile, the CGT and Mr. Morlier had officially requested the Council of State to order a stay of execution of the judgement handed down by the Administrative Tribunal. In a decision handed down on 19 November 1986, the Council of State upheld the request and ordered a stay of execution of the judgement and the Minister of Social Affairs and Employment, with whom an appeal submitted through official channels was lodged against the 16 June 1986 decision of the labour inspector, annulled that decision and denied authorisation to dismiss Mr. Morlier on 1 December 1986. In accordance with sections l.412-19, l.425-3 and l.436-3 of the Labour Code, this decision of the administrative authority is immediately enforceable. Mr. Morlier is at liberty now to resort to an emergency procedure for bringing the matter before the industrial tribunal. Moreover, if it refused to reinstate Mr. Morlier, the Colas company is liable to criminal proceedings that may be initiated by the person concerned, the trade union organisation or the labour inspector.
110. Concerning the "Goutille affair", the Government states that the company went into liquidation on 31 May 1982 following the resignation of the managing director on 1 May 1982 and the appointment of a provisional administrator. As soon as the company's liquidation was announced, the staff occupied the enterprise and, in order to start operating again as a workers' production co-operative, took the totally illegal step of recovering part of the company stock in Mulhouse. The stock, however, had been sold by Goutille before it went into liquidation and therefore no longer belonged to the company. On 28 July 1982 the Commercial Court of Roanne authorised the company receiver to set a price for the transfer of the assets of the former Goutille company to the new co-operative company "Création Goutille". The judgement of the Commercial Court, however, was reversed by the Court of Appeal of Lyons which declared it to be null and void.
111. Meanwhile, the receiver had lodged a complaint with the Public Prosecutor of Roanne concerning the theft of 1,346 pieces of material belonging to Goutille. Part of this material was sold and part used for making up dresses and other articles of clothing, all of which was quite irregular since the co-operative had no legal existence. On 27 November 1984 the Correctional Court of Roanne convicted of theft five Goutille employees who had taken the clothing material in Mulhouse. On appeal, the Court of Appeal of Lyons confirmed the judgement of the Roanne tribunal but reduced the sentences imposed on the five employees. At the same time it ordered them jointly to pay the receiver 500,000 francs in damages to compensate for the use of the stolen pieces of material.
112. The labour administration has nothing to do with the difficulties that the five who were convicted employees have encountered with the court and has never placed any obstacle in the way of a resumption of operations by the new company. The complaint to the Roanne tribunal was submitted by the receiver, without consulting the Departmental Directorate of Labour and Employment. Furthermore, the accusations concerning the manner in which the difficulties encountered by the employees were treated and concerning the decisions taken with respect both to the constitution and subsequent setting aside of the new company and to the criminal sentences handed down on the employees concerned are a matter for the courts of law, which have acted in due conformity with French law and quite independently of the executive authorities and, specifically, of the Minister of Social Affairs and Employment. It would thus seem quite clear, on the one hand, that the labour administration has nothing to do with the difficulties that the employees have encountered with the tribunals and, on the other, that the activities regarding which legal proceedings were initiated had no connection with their trade union activities.
113. With respect to the Bata-Marbot affair, the Government, supplementing the information contained in its previous communication, states that in spite of cuts in staff the enterprise was obliged to declare itself bankrupt on 31 October 1985 and went into compulsory liquidation on 4 November 1985. On 8 November 1985 the receivers responsible for its provisional administration received an offer from the Compagnie Française de Textile (CFT) which proposed to take over the management of Marbot under a rental arrangement whereby it would retain only 812 employees. In a judgement handed down on 14 November 1985 the Commercial Tribunal of Périgueux authorised the rental arrangement with the CFT and, on the same day, the receivers dismissed 227 persons for economic reasons, in accordance with the legal provisions in force (section L.321-7 of the Labour Code). Each of these persons was at liberty to contest his dismissal before the relevant industrial tribunal.
114. At the same time the receivers responsible for the company's provisional administration submitted a request to the labour inspector for authorisation to dismiss 21 protected employees, after consultation with officials of the Departmental Directorate of Labour and Employment of Dordogne. In a decision handed down on 17 December 1985, the labour inspector refused to authorise the dismissal of 13 of the protected employees and authorised that of eight others. On 20 December 1985 Marbot SA lodged an appeal through administrative channels against the refusal to authorise dismissal in 13 cases. In a decision handed down on 9 January 1986, the appeal was declared irreceivable on the grounds that the managing director and receivers of Marbot SA were no longer empowered to contest the decisions of the labour inspector and that the contracts of employment that were in force on 14 November 1985 had been transferred to the CFT, which was taking over from Marbot. On 9 January 1986 the CFT lodged an appeal through administrative channels against the decisions of 17 December 1986; the appeal concerned only ten of the employees whose dismissal had been refused. In a decision handed down on 17 January 1986, the appeal was rejected in respect of five of the employees, whose dismissal was again refused, and accepted in respect of the five others, whose dismissal was now authorised. The latter then lodged an appeal with the Administrative Tribunal of Bordeaux to have the latest decision cancelled; this appeal is still under review.
115. The Government observes that Marbots' request for authorisation was initially refused on the grounds that, although it still existed under company law, it was no longer the employer of the persons concerned when it lodged its appeal through administrative channels. Considering it a matter of urgency because of the company's economic situation and the rapidly worsening labour relations climate, as the request submitted by the CGT itself shows, the Minister of Labour on receiving the request immediately asked the Regional Director of Labour and Employment to investigate the matter or make appropriate arrangements as rapidly as possible. In the course of his investigations the Departmental Director of Labour and Employment of Dordogne spoke with the staff representatives concerned on 16 January 1986. As permitted by the law, the latter were assisted by the General Secretary of the CGT departmental trade union. The administrative authority therefore cannot in any way be accused of not having conducted a thorough investigation of the appeal lodged by the CFT after having heard the arguments on both sides.
116. In authorising certain dismissals, the Minister of Labour, by virtue of his administrative powers under the law, took into consideration the following points of which the interested parties were notified in the relevant decisions: the genuineness of the economic reasons underlying the dismissal procedure cannot seriously be contested; the number of posts suppressed in the space of a few months and the declaration of bankruptcy reflect the economic and financial difficulties of the company; it is out of the question either to maintain the staff representatives in their present jobs or to find them alternative employment; the grounds for dismissal do not stem from the mandates held by the employees concerned.
117. As to the alleged infringement of freedom of association in this company, the Government observes that the labour inspector twice drew up an official report; on 28 November 1985 to the effect that, in the absence of the reinstatement of the staff representatives, the exercise of their functions had been hindered; on 27 May 1986 to the effect that, in so far as the employer had failed to convene the monthly meetings of the staff delegates, the functioning of that institution had been hindered. The reports were sent to the judicial authority for appropriate legal action. In accordance with normal procedure, the State Prosecutor ordered a hearing for the persons whose responsibility might be involved. Matters are following their normal course.
118. The incidents cited in the complaint submitted by the Trade Unions International of Textile, Clothing, Leather and Fur Workers concerning the brutality suffered by Mrs. Parade, though regretable, do not come within the purvue of labour law but must be investigated and dealt with within the framework of the general legislation applicable to the inflicting of bodily harm. Through her lawyer, Mrs. Parade has in fact filed a complaint and instituted civil proceedings before the senior examining judge of the Court of Périgueux. It remains now for the examining judge and the courts to determine the guilty parties, impose any penalty that may be provided for by the Penal Code and compensate Mrs. Parade for the prejudice sustained.
C. The Committee's conclusions
119. The representation made by the CGT is based on the allegation that anti-union repression in France since 1984 has taken on extremely serious proportions. In support of its position, the complainant introduces five sets of allegations that the Committee will examine in turn: infringement of trade union rights in the private and nationalised sectors, suppression of facilities previously granted to trade union organisations in the form of trade union premises and means of action, infringement of the rights of workers' representatives, infringement of the right to bargain collectively, and repression of the right to strike.
I. Infringement of trade union rights in the private and nationalised sectors
120. The GCT alleges first of all that dismissal for economic reasons is an ideal means for employers to rid themselves first and foremost of unionised workers and cites examples of employers closing down their enterprise or filing for bankruptcy, in order to eliminate the trade union section by excluding those sectors where the CGT is in a majority position when the enterprise resumes operation. The Government, on the other hand, observes that the Labour Code provides for protection against dismissal for trade union activities and that this protection has been reinforced by legislation adopted in 1985.
121. The Committee notes in particular that, where the Government has been able to verify some of the facts, there is no evidence of any link between the closure of an enterprise and the presence of a majority CGT staff representation in the establishment.
122. It is also apparent from the detailed explanation given by the Government and the examples offered in support of its position (Coignet, Citroën, Carpiquet and Bata-Marbot, inter alia) that the Ministry of Labour has, whenever documented cases of an infringement of trade union rights have been brought to its attention, endeavoured to enforce the relevant laws and regulations and has refused authorisation to dismiss staff delegates.
123. Bearing in mind, therefore, that legislation does exist that provides for penalties and civil remedies against any employer who commits acts of anti-union discrimination, and in the light of the Government's explanations regarding the steps taken by the Ministry of Labour to protect the exercise of trade union rights, the Committee considers that this aspect of the representation does not call for further examination.
124. In its representation, the CGT highlights the Alain Clavaud affair and the dismissal of this trade unionist by the management of Dunlop-Montluçon following the publication by the newspaper l'Humanité of a diary of his impressions at work. The Committee notes with interest that the industrial tribunal has ordered Alain Clavauds' reinstatement or the payment to him of 500 francs for each day's delay.
125. The CGT also alleges that employers, particularly in small enterprises, infringed the right to organise and establish trade union sections and to set up representative staff institutions. The Government points out that, under the Labour Code, any impediment to the exercise of these rights is punishable by imprisonment and/or a fine and that disputes over such matters can be settled by bringing them to the attention of the labour inspectorate. The Government cites instances - at CGEE-Alsthom and in the PSA group, for instance - where disputes of this nature have indeed been settled as a result of action taken by the labour inspectorate.
126. On this point, considering that both the legislation and the practice observed by the Ministry of Labour constitute genuine guarantees for the protection of trade union rights, the Committee considers that this aspect of the representation does not call for further examination.
II. Suppression of facilities previously granted to trade union organisations in the form of trade union premises and means of action
127. The allegations concerning this aspect of the case refer to the eviction of the trade unions from the premises they were occupying in several towns, and notably in Levallois-Perret where the mayor has closed down the job centre. According to the complainant, following the 1983 municipal elections, the mayors of these towns withdrew the job centre facilities and the trade union premises that they had previously made available to the CGT and cancelled or reduced municipal subsidies. In Paris, most of the union premises and facilities that the municipality had previously granted the CGT as most representative organisation at the Paris job centre have been withdrawn. The Government has replied specifically to the two allegations on which the complainant has provided detailed information, those relating to the municipalities of Levallois-Perret and Paris. In the first case, the job centre has in fact been closed down but other premises - that the CGT considers too small - have been made available to the union organisations. Moreover, an appeal has been lodged with the Council of State. In the case of the Paris job centre, the Government recognises that the recent order issued by the mayor has modified the distribution of seats on the centre's administrative body in the light of the results of the 1983 trade union election to the local family allowance board and that as a result the CGT has lost its majority, but it also points out that no appeal has been lodged with the administrative authority against the decision. As to the other allegations, no complaint has been brought to the notice of the labour inspectorate.
128. The Committee notes the information received. As the Government points out in its reply, it is quite clear that Convention No. 87 does not require the State or local community to provide trade union organisations with special facilities and, consequently, the incidents referred to by the CGT cannot be looked upon as a violation of the Convention. The fact remains, however, that a decision to restrict or prohibit the use of premises that have been made available to trade unions for a long time was bound to have unfortunate consequences for those organisations.
129. As to the change in the distribution of seats on the Paris job centre's administrative body, the Committee notes that it is the outcome of trade union elections and therefore considers that this aspect of the representation does not call for further examination.
III. Infringement of the rights of workers' representatives
130. The allegations under this heading refer to the dismissal for economic or non-economic reasons, with administrative authorisation, of over 15,000 workers' representatives between 1978 and 1985. The Government has replied that French labour legislation contains specific provisions protecting staff representatives and even candidates for election to these posts, workers who have requested the holding of elections and former members of committees set up within the enterprise. The Government considers, however, that the fact that administrative authorisation has to be obtained to dismiss any protected person does not mean that they cannot be dismissed for grave misconduct or for general economic reasons. It believes that the increasing number of appeals is a reflection of the growing economic crisis and of its repercussions on employment and it asserts that, in the event of an appeal, the administrative judge assesses the seriousness of the accusations brought against the worker and decides whether or not they are of sufficient gravity to justify his dismissal. The Government cites a number of cases where authorisation to dismiss CGT delegates has been refused either directly by the labour inspectorate (Creusot-Loire, Bata) or by the administrative judge (FOP).
131. Regarding other forms of repression, and specifically the alleged refusal to authorise access to "defence areas", the Government confirms that the law lays down specific conditions for access to such areas for the staff representatives of enterprises engaged in national defence work but states that trade union organisations normally accept the fact. Where trade union activists have been isolated or suffered discrimination, the situation has been remedied by the labour inspectorate or labour courts.
132. In the case of the dissolution of the Lorient fire brigade by the Ministry of the Interior as a result of which CGT trade union members and officials were first suspended and then found alternative employment, it is apparent from the complainants' own statements that the firemen concerned had refused on a number of occasions to carry out duties that were essential to ensure the safety of persons. In the view of the Committee, such an attitude is outside the scope of legitimate trade union activities and the steps taken to remedy the situation cannot be looked upon as acts of anti-union discrimination.
133. Nevertheless, it is apparent from the Government's reply that the rights of workers' representatives have indeed been infringed in a number of cases but that, in so far as specific instances have been brought to the attention of the administrative judges or authorities, the situation has been remedied. The fact remains, in the view of the Committee, that, since the economic crisis is liable to be used as a pretext for anti-trade union reprisals, governments must normally be particularly vigilant in ensuring that workers' representatives are protected.
134. The Committee accordingly draws the Government's attention to the Workers' Representatives Recommendation, 1971 (No. 143) which mentions various measures that might be taken with a view to the effective protection of workers' representatives. These might include measures such as laying upon the employer the burden of proving that the decision to dismiss or penalise the worker was actually justified, and the recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce.
IV. Infringement of the right to bargain collectively
135. The CGT criticises the fact that ministers are empowered to extend collective agreements even though they may not have been signed by the majority of the representative trade union organisations. The Government explains that extension orders are issued by the Ministry of Labour after a substantiated opinion has been expressed by the National Collective Bargaining Committee and that, where the text has not been signed by all the most representative organisations concerned, the Minister of Labour may consult the committee again. Extension of an agreement is possible only where it has been signed by a representative workers' organisation.
136. In previous cases, the Committee has considered that the extension of an agreement to an entire sector of activity contrary to the views of the organisation representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organisation and that this system makes it possible to extend agreements containing provisions which result in a worsening of conditions of work of the category of workers concerned. (See, inter alia, 217th Report, Case No. 1087 (Portugal), para. 223.)
137. However, in the case under consideration the Committee observes that the legislation does contain certain protective clauses, since extension presupposes that the National Collective Bargaining Committee has been consulted and that a representative workers' organisation has signed the text. Under these circumstances, and since the legislation sets objective criteria for determining the representativeness of trade union organisations, the Committee considers that this aspect of the representation does not call for further examination.
V. Repression of the right to strike
138. The allegations referred to the infringement of the right to strike principally by means of excessive recourse to legal proceedings by nationalised and private enterprises, the expulsion of strikers and the use of subcontracting or temporary workers to replace strikers.
139. The Government, noting that Conventions Nos. 87 and 98 contain no allusion to the right to strike, points out that the right is recognised in the Preamble of the French Constitution, which stipulates that it must be exercised within the framework of the laws that govern it. The Council of State has added to this that the right to strike, like any other right, must be limited in order to avoid abuse or its being exercised in defiance of public order. Moreover, in a November 1982 ruling on a case cited by the CGT, the Court of Appeal has stated that trade unions should be deemed liable for events in which they have actually participated if the events constitute a penal offence or cannot be ascribed to the normal exercise of the right to strike.
140. As it has emphasised on numerous occasions, the Committee considers the right to strike to be a legitimate means of defending the workers' interests. (See 244th Report, Case No. 1270 (Brazil), para. 225.) The Committee must therefore consider whether the alleged facts constitute an undue restriction of the exercise of the right to strike.
141. The Committee notes that, where strikers or trade unions have been convicted by the courts in connection with strikes referred to by the complainant organisation, it has been for illegal acts such as assault, illegal confinement, criminal offences, impairment of movement of persons and goods, etc. Similarly, the expulsion of strikers occupying a place of work has taken place only under certain guarantees and where their presence is an obstacle to the work of non-strikers. Since it deems strike action to be legitimate only when exercised peacefully and without intimidation or physical constraint, the Committee considers that this aspect of the representation does not call for further examination.
142. As to the replacement of strikers by temporary workers, the Committee notes that under the Act of 25 July 1985 employees of temporary work agencies may not be called in. The Committee also observes that, by an Ordinance of 11 August 1986, the fixed term work contract cannot have as its objective the replacement of a wage earner whose employment contract has been suspended following a collective labour dispute. It therefore considers that this aspect of the case does not call for further examination.
The Committee's recommendations
143. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
a) Regarding the suppression of facilities previously granted to trade union organisations in the form of trade union premises and means of action, although the alleged facts do not constitute a violation of the Convention the Committee calls upon the competent authorities, in order to avoid detrimental consequences for trade union organisations, to endeavour, whenever it is not possible to allow such organisations to continue using their premises, to offer alternative solutions so that they can continue operating normally.
b) Regarding the infringement of the rights of workers' representatives, the Committee, while noting that the judicial or administrative authorities have remedied such situations as have been brought to their notice, calls upon the Government to pay due attention to the provisions of the Workers' Representatives Recommendation, 1971 (No. 143), that relate to the means of ensuring effective protection of workers' representatives.
Geneva, 26 February 1987 Roberto Ago,
Chairman