Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 7 of the Convention. Permanent exemptions – Sunday work. The Committee notes the detailed information provided by the Government in reply to its previous comments and the numerous attachments to its report, as well as the comments made by the General Confederation of Labour–Force Ouvrière (CGT–FO), received on 26 August 2010, and the Government’s reply to these comments, received on 15 November 2010. In its comments, the CGT–FO recalls the criticisms that it made in 2009 concerning Act No. 2008-3 of 3 January 2008 establishing an exemption to the Sunday rest rule for retail furniture stores, and Act No. 2009-974 of 10 August 2009, and its view that these extensions of exemptions from the principle of Sunday rest are opening the way to the generalization of Sunday work, as the many exceptions now granted no longer have an objective and imperative basis from the viewpoint of the general interest. The CGT–FO also emphasizes the dangers arising from this generalization of Sunday work in terms primarily of the family and social life of workers, but also the frequently precarious nature of jobs involving Sunday work.

I. The viewpoint of the workers concerned with regard to Sunday work

In its previous observation, the Committee requested the Government and the social partners to provide further information on a number of points. It expressed the wish to be provided with the results of any opinion surveys carried out among the workers concerned. The Committee notes that the Government attached to its report the findings of several surveys published in 2008 and 2009, and a table recapitulating the results. It notes that, according to the findings of the CSA poll of October 2008 entitled “The opinion of the French on Sunday work”, 50 per cent of the workers questioned indicated that they were ready to work on Sunday if they were paid double, while there were 49 per cent of negative opinions. The Committee also notes the findings of the survey “Sunday work: What do those who work on Sunday think?”, published in December 2008, according to which, in the view of 82 per cent of the employees questioned in the context of the study, the fact of working on Sunday primarily arises from a constraint related to the nature of their work or job. Moreover, the employees questioned indicated that a majority were personally in favour of greater legal flexibility so that more shops could open on Sunday (55 per cent) and the Bill to authorize Sunday work on a voluntary basis (66 per cent). In its comments, the CGT–FO questions the relevance of taking into account opinion surveys to assess the conformity of a legal measure with an ILO Convention. The Committee wishes to emphasize in this respect that this information is not intended to assess the conformity of the national legislation with the Convention as such, but rather to have available fuller information on the overall context surrounding the 2009 Act. The CGT–FO also recalls the difficulties involved in drawing reliable findings from opinion polls and refers to a study carried out in 2008 by the Centre de recherche pour l’étude et l’observation des conditions de vie (Crédoc), which was not mentioned by the Government in its report, according to which, although 52 per cent of those surveyed were in favour of the Sunday opening of shops, 61 per cent were opposed to working on a Sunday. The Committee observes that the polls published on the issue of Sunday work do not offer definitive conclusions on the views of the workers concerned. Indeed, there appears to be a dichotomy between the replies given by workers concerned with Sunday work and those of potential clients on a Sunday.

II. The voluntary nature of Sunday work

The Committee also requested information on the measures adopted to ensure the voluntary nature of Sunday work and the compensatory measures offered to the workers concerned. In this respect, it notes the Government’s indications that the reality of the voluntary nature of the work is ensured by several requirements and guarantees, both individual and collective, set out in the applicable legislative provisions. The Committee also notes that, according to the Government’s report, no guarantees of this type existed in the Labour Code before the adoption of the Act of 10 August 2009. The Committee further notes the Government’s indications that, in tourist towns and areas, the guarantees and compensatory measures available for employed persons are established by the provisions of branch and/or enterprise agreements. It notes that section 2 of Act No. 2009-974 requires the opening of negotiations with a view to the conclusion of an agreement on the measures to compensate Sunday work in branches that include shops and retail services, and in such shops or services where an agreement is not already in force. The Committee notes the information provided by the Government concerning the provisions respecting compensatory measures for Sunday work contained in the collective agreements concluded in sectors in which employees traditionally work on Sundays, and the conclusion of enterprise agreements which harmonized the system of compensatory measures applicable to persons employed by the enterprise, irrespective of the location of the shop or the type of exemption (tourist town or area, “areas of exceptional consumption” (PUCE), exemptions accorded by the Prefect), with most agreements providing for the doubling of remuneration and the granting of compensatory rest. Finally, the Committee notes the conclusion of the inter-branch agreement of 27 November 2009 on shops opening on Sunday in the Plan de campagne area, which is the largest commercial zone in France and concerning which there was a lively polemic before the adoption of the Act of 2009, as the retail stores were open there despite the legal prohibition that was then applicable. The Committee notes that this agreement envisages two days of weekly rest, one of which is determined in agreement with the employed person, but which may nevertheless be worked, and a wage supplement equivalent to a minimum of 100 per cent of the minimum interoccupational growth wage (SMIC).

The Committee notes that the CGT–FO, in its comments, emphasizes that the Labour Code, as amended by Act No. 2009-974, envisages a difference of treatment that is difficult to justify for workers employed in retail stores according to whether they are employed in a tourist town or in a PUCE, as the voluntary nature of Sunday work is only required in the latter case. The CGT–FO also considers that it is difficult to ensure the really voluntary nature of Sunday work, particularly during a period of high unemployment and in view of the economic dependence of employed persons on their employer. With regard to the compensatory measures for employed persons who do not benefit from Sunday rest, the CGT–FO considers that, also in this respect, the Act introduces inequality of treatment between employed persons. While persons employed in retail stores located in a PUCE benefit from remuneration that is at least double their normal pay, and equivalent compensatory time off, the same does not apply to those engaged in an establishment located in a tourist area. The CGT–FO accordingly asserts that, in view of these differences, the actors concerned are tempted to request classification of their areas as tourist areas, so that retail stores can benefit from the exemption for Sunday work with a minimum of constraints. It observes that all employed persons who do not benefit from these minimum compensatory measures set out in law can only avail themselves of the provisions of the various sectoral collective agreements or enterprise agreements, which is also a major source of inequality of treatment between employed persons. The CGT–FO also affirms that an enterprise agreement may derogate from the provisions of a branch collective agreement, even where it is less favourable to the employed person. Finally, according to the CGT–FO, since the entry into force of the Act of 10 August 2009, most of the measures taken in enterprises establishing compensatory measures for work on Sunday in reality arise out of unilateral decisions by the employer, validated by a referendum of the personnel, which does not offer sufficient guarantees of dialogue and avoids the traditional channels of collective bargaining.

In its reply to the CGT–FO’s comments, the Government emphasizes that the principle of the voluntary nature of the work applies to all employed persons working on Sunday under individual and temporary exemptions granted by Prefects. It adds that the principle of the voluntary nature of such work was not extended to cases of exemptions from the right to Sunday rest in so far as, in such cases, Sunday work is a structural component of the jobs involved, known at the time of recruitment. The Government also recalls the guarantees afforded by the law to ensure the voluntary nature of work by employed persons and observes that the labour inspection services have not up to now reported difficulties in the implementation of the legal requirements in this respect. With regard to the compensatory measures, the Government asserts in its reply that the Act of 10 August 2009 extended the scope of the exemptions for which compensatory measures for Sunday work are compulsory. These consist not only of exemptions in PUCEs, but also exemptions under section L.3132-20 of the Labour Code. In both of these cases, the employed persons benefit from either compensatory measures determined by collective agreement, or by law (the doubling of remuneration and compensatory rest) in the absence of an agreement.

III. Current situation in tourist areas and PUCEs

In its observation in 2009, the Committee also requested information on any developments concerning the definition of tourist areas and PUCEs. It notes that, according to the Government’s report, 570 territorial communities are registered as areas of touristic interest and 36 of them include one or more areas of exceptional consumption or permanent cultural activity, with the city of Paris having seven such areas. It also notes that five of these towns and areas have been registered as such since the entry into force of Act No. 2009-974, and that only around ten applications are under examination. The Committee notes that, according to the Directorate of Research, Studies and Statistics (DARES), around 50,000 retail stores with approximately 250,000 employed persons would potentially be concerned by Sunday work in tourist towns and areas. It also notes that, according to the Government’s report, 15 PUCEs were created in June 2010 following the adoption of the Act of 10 August 2009, with the number of stores concerned being estimated at 500 and the number of employed persons potentially concerned being evaluated at between 4,000 and 5,000.

In its comments, the CGT–FO indicates that the profiles of tourist areas are fairly difficult to understand, which is unacceptable as it leaves the door open for unjustified applications for classification as tourist areas. It considers that the definition of PUCEs also raises problems, as the elements which characterize a PUCE bear no relation to the requirement to meet primary necessities, but relate more closely to the achievement of profit objectives. Furthermore, the criteria set out in law, relating to customary Sunday consumption and the volume of customers, would appear, according to the CGT–FO, to respond to a desire to legalize practices that were previously illegal. Finally, it considers that, one year after the entry into force of the Act, PUCEs are appearing throughout France.

In reply to the CGT–FO’s comments, the Government indicates that no significant acceleration in applications for classification as tourist areas has been observed since the adoption of the Act, and that the 11 areas so classified obeyed the strict application of the provisions of the Labour Code. With regard to PUCEs, the Government indicates that up to now 24 PUCEs have been established, while 13 other applications, which did not fulfil the legal requirements, were refused. The Government adds that the number of employed persons potentially concerned by the exemptions in relation to PUCEs is under 15,000 and that the allegation of the generalization of Sunday work is therefore unfounded.

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The Committee takes due note of the voluminous information provided by the Government and the CGT–FO. It recalls the three basic principles around which the Convention is articulated, to which it referred in its previous observation: 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 in an establishment and to coincide, wherever possible, with the traditional day of rest). It also recalls that Article 7 of the Convention only permits the application of special weekly rest schemes where the nature of the 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 cannot be applied.

While noting that the Labour Code indeed establishes a period of weekly rest of at least 24 consecutive hours, as required by the Convention, and explicitly provides that “in the interest of the employed persons” the weekly rest period shall be granted on Sunday, and while noting that the Act of 10 August 2009 reaffirms in its title the principle of weekly rest, the Committee is bound to note the progressive extension of the exemptions to this principle authorized by the legislation. It accordingly observes that, according to a study published by DARES in October 2009, Sunday work concerned around 6.5 million employed persons, or 28 per cent of them, in 2008 and, of those, 2.8 million (or 12 per cent) habitually worked on Sunday, and that these statistical data are far from being negligible.

In any event, irrespective of the issue of the number of commercial establishments and workers concerned by these new exemptions, what remains to be demonstrated is that it was impossible to apply the normal weekly rest scheme, thereby necessitating recourse to Sunday work. Taking the example of the extension to retail furniture stores of the exemptions authorized by section L.3132-12 of the Labour Code, the Committee notes that this exemption was introduced by Act No. 2008-3 of 3 January 2008 with a view to the development of competition for the benefit of consumers. This wording clearly demonstrates that it is based on economic considerations, related to competition, and the wishes of consumers. Social considerations, namely the impact of the exemption on the workers concerned and their families, do not appear to have been taken into account, or at least not at the same level as economic factors. Moreover, while the opening of furniture stores may correspond to the wishes of consumers, it does not appear to amount to a necessity such that the application of the normal weekly rest scheme is impossible.

The legal measures adopted in favour of tourist areas and PUCEs give rise to similar comments from the Committee. Prior to the amendment made by the Act of 10 August 2009, the exemption for tourist areas was limited in time to the tourist period and in scope to retail stores offering the public goods and services intended to facilitate their stay or their relaxation or leisure activities. These conditions, which appeared to be such as to confine the exemption within the limits of its assigned objective, were set aside by the amendment of 10 August 2009. Moreover, the introduction of PUCEs openly responds to concerns of an economic nature, which nevertheless reflect the preferences of many consumers. It, however, had the effect of encompassing in the exemption all the stores located within the perimeter of large commercial centres without taking into account their size or activity, thereby going beyond the scope of the special schemes defined by the Convention on the basis of criteria related to the impossibility of complying with the normal scheme that it establishes, by reason of the nature of the work, the nature of the services performed by the establishment, the size of the population to be served or the number of persons employed (Article 7(1)).

The Committee clearly understands that, in the context of open competition, exacerbated as it is by the crisis, the member States of the ILO are led to endow labour rules with a certain flexibility to help enterprises cope. It nevertheless observes that, under the terms of the Convention, for an exemption to be made to the general weekly rest scheme, regard must be had to all proper social and economic considerations. It therefore requests the Government to continue reviewing, with the social partners, the impact in practice of the measures introduced by Act No. 2008-3 of 3 January 2008 and Act No. 2009-974 of 10 August 2009 having regard for both social and economic considerations. The Committee requests the Government to keep the Office informed of the outcome of this evaluation, and of any initiative that it may take in this respect.

Furthermore, the Committee is concerned at the information relating to the difference of treatment between persons employed in shops located in tourist areas and those who work (sometimes for the same company) in an establishment located in a PUCE in relation to the guarantees concerning the voluntary nature of Sunday work and the minimum compensatory measures established by law. It considers it desirable to ensure equivalent protection for persons employed in these two categories of establishments, particularly since the number of businesses benefiting from exemptions in tourist areas has been increased since the entry into force of the Act of 10 August 2009, and it requests the Government to provide fuller information on the measures that it could envisage adopting for this purpose, in consultation with the organizations of employers and workers concerned. The Committee notes the examples of sectoral collective agreements to which the Government refers in its report, but also notes the CGT–FO’s indications that enterprise agreements can derogate from sectoral agreements, even where their provisions are less favourable to the workers. It requests the Government to provide more detailed information on this point and, if this is indeed the case, to indicate the manner in which the existence of minimum guarantees is ensured for workers engaged on Sunday in terms of the voluntary nature of the work and compensatory measures. Finally, the Committee requests the Government to attach to its next report a copy of the report of the parliamentary committee to follow up the Act of 10 August 2009.

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