Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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