Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

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

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

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