Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - France (Ratification: 1951)

Autre commentaire sur C098

Observation

Demande directe

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The Committee notes the observations of the French Democratic Confederation of Labour (CFDT) and the Management Confederation of France-General Confederation of Managers (CFE-CGC) received on 6 and 8 September 2021 respectively, which relate to the issues examined in the present direct request. The Committee also notes the Government’s comments thereon.

Collective bargaining and the COVID-19 pandemic. The Committee notes the Government’s information on the measures taken in 2020 to support the continuation of collective bargaining during the health crisis and to enable the social partners to deal with the urgent situations created by the COVID-19 pandemic. The Committee notes in this respect that: (i) an exceptional mechanism for shortening certain deadlines for the conclusion and extension of collective agreements relating to the consequences of the health crisis was put in place; and (ii) this mechanism was applicable only to company and branch agreements whose exclusive purpose was to deal with the social, economic and financial consequences of the pandemic and it ceased to apply on 10 October 2020.

Article 4. Promotion of collective bargaining in small enterprises. In its previous comment, the Committee had noted the observations of the General Confederation of Labour Force Ouvrière (CGT–FO) and CFE–CGC denouncing that the reforms of the collective bargaining and social dialogue mechanisms adopted on 22 September 2017 had significantly extended the possibility of concluding collective agreements without the participation of trade union organizations, particularly in small enterprises. On the basis of these observations and the corresponding Government responses, and having recalled that negotiation with non-union actors should only be possible in the absence of trade union organizations at the relevant level, the Committee had requested the Government to: (i) specify the modalities enabling workers in enterprises with fewer than 11 employees and in enterprises with between 11 and 20 employees without elected staff representatives to negotiate collectively their working conditions through trade union organizations, if they so wished; and (ii) indicate the action taken to promote collective bargaining within the meaning of the Convention in small enterprises.

The Committee notes in this respect the Government’s indications that: (i) in enterprises with 11 to 20 employees, it is always possible, in the absence of an elected staff representative, to negotiate an agreement with one or more employees expressly mandated by one or more representative trade union organizations (Article L. 2232-23-1 of the Labour Code); (ii) even if the appointment of a trade union delegate (who, under French law, has the capacity to negotiate and conclude a collective agreement as long as his or her organization is sufficiently representative) is only expressly envisaged by the Labour Code for enterprises with at least 50 employees, the branches may set the number of employees in enterprises from which trade union delegates may be appointed. They can therefore provide for the possibility of appointing a trade union delegate in companies with fewer than 50 and even fewer than 20 employees if they consider it appropriate in the light of the trade union context in the branch; and (iii) a trade union organization can also negotiate in all small companies through the representative of the trade union section. Trade union organizations can in fact set up trade union sections in small companies under the conditions set out in Article L. 2142-1 of the Labour Code. Article L. 2143-23 of the Labour Code authorizes the representative of the trade union section to negotiate, in the absence of a trade union delegate in the company or establishment, company or establishment agreements if he or she is mandated by his or her trade union organization.

The Committee notes that the Government then provides information on the use in 2020 of the various methods of concluding collective agreements in small enterprises (apart from those agreements concluded specifically on employee savings). In this respect, the Government states that: (i) in companies with fewer than 50 employees in general, 19 per cent of the agreements concluded were signed by trade union delegates, 17.7 per cent were signed by elected staff representatives and employees mandated by a trade union organization, 20.7 per cent by elected staff representatives not mandated by a trade union organization, while 41 per cent were directly adopted by staff vote by a 2/3 majority; (ii) focusing the scope to companies with less than 21 employees, 72.9 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority; and (iii) further focusing the scope to companies with less than 11 employees, 89 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority.

The Committee also notes the additional information provided by the Government concerning: (i) the organization every four years of an election to measure the audience of trade union organizations in enterprises with fewer than 11 employees, in accordance with Article L. 2122-10-1 of the Labour Code, which, according to the Government, is likely to encourage the establishment of trade union organizations within these companies; and (ii) the existence of departmental observatories for analysis and support for social dialogue and negotiation, in which the trade union organizations are involved and which aim to encourage and promote collective bargaining in companies with fewer than 50 employees.

The Committee further notes the observations of the CFDT and the CGC-CFE. The Committee first notes that the CFDT wishes to nuance the Government’s assertion on the possibilities of trade union establishment in small enterprises insofar as other provisions of the Labour Code would, on the contrary, aim to prevent this. The Committee notes that the CFDT states in this respect that: (i) since 2017, trade union organizations are no longer automatically informed of the organization of elections for staff representatives in enterprises with 11 to 20 employees, which clearly limits their possibility of establishing themselves in these companies; (ii) even if the mandating by a trade union organization of an employee for the purposes of collective bargaining remains possible in enterprises with fewer than 50 employees without a trade union delegate, the employer now has the option of choosing other modalities for concluding collective agreements with non-union actors (negotiation with elected staff representatives when they exist ; in the absence of elected staff representatives in companies with up to 20 employees, submission by the employer of a proposal to a vote of the employees); and (iii) the employer does not inform the trade union organizations of its intention to negotiate a collective agreement in the company, which makes it very difficult to take initiatives to mandate employees for the purpose of collective bargaining.

The Committee also notes the position expressed by the CGC-CFE, which in turn criticizes agreements concluded by direct employee approval of a proposal made by the employer in companies with up to 20 employees. The trade union organization states that this mechanism does not give rise to genuine collective bargaining and that the conditions for a balanced debate between the employer and his employees are not met. The Committee notes in this respect the Government’s comments that: (i) the system of mandating employees of small enterprises by trade union organizations for the purpose of collective bargaining was very rarely used before the 2017 reform, which left many small enterprises without the possibility of negotiating and concluding collective agreements; (ii) collective bargaining in small and very small enterprises is generally of an informal nature; (iii) a qualified majority of employees is required for the approval of the agreement proposed by the employer envisaged by Articles L. 2232-21 to L. 2232-23 of the Labour Code; and (iv) under the same provisions, employees have a period of 15 days to express their opinion on the employer’s proposal and have the possibility to seek advice from the departmental observatory for analysis and support of social dialogue and negotiation.

The Committee takes note of these different elements. It first notes the information provided by the Government on the possibilities of collective bargaining through trade union organizations in small enterprises, including enterprises with fewer than 20 and fewer than 11 workers. The Committee also notes the divergent opinions of the Government and the trade unions on the effectiveness of measures to promote collective bargaining within the meaning of the Convention in small enterprises and on the mechanism for reaching an agreement through the approval by a 2/3 majority of the workers of a proposal submitted by the employer. The Committee also notes the allegations of the trade union organizations that, under Articles L. 2232-23 and L. 2232-23-1 of the Labour Code, in the event of the presence in the enterprise of an employee mandated by a trade union organization for the purposes of collective bargaining, the employer would have the choice of either negotiating with the latter or resorting to the other methods of concluding collective agreements provided for in the Labour Code in small enterprises and not involving trade union actors.

The Committee notes from the above that, under the legislation in force since 2017, there are three main ways of concluding collective agreements in small companies, each subject to specific rules and conditions: (i) the conclusion of an agreement with one or more trade union delegates or one or more employees mandated by a trade union organization; (ii) the conclusion of an agreement with one or more elected staff representatives not mandated by a trade union organization; and (iii) the approval of an employer’s proposal by a direct vote of the employees of the company by a two-thirds majority. The Committee notes that the first method is in line with Article 4 of the Convention, according to which collective bargaining takes place between employers and employers’ organizations on the one hand, and workers’ organizations on the other. With regard to the second modality, the Committee recalls, as indicated in its previous comment, that direct negotiation with elected staff representatives should only be possible in the absence of trade union organizations at the relevant level. As regards the third modality, the Committee considers that the adoption by a direct vote of the employees of a proposal by the employer does not have the characteristics of a collective bargaining mechanism within the meaning of the Convention. On the basis of the above, the Committee requests the Government to: (i) clarify whether, in a small enterprise where there is an employee mandated by a representative trade union organization for the purpose of collective bargaining, the employer may freely choose another method of concluding a collective agreement (negotiation with non-mandated elected staff representatives where they exist; submission by the employer of a proposal to a vote of the staff in the absence of elected staff representatives in enterprises with up to 20 employees); (ii) continue to provide statistics on the use of the different ways of concluding collective agreements in small enterprises; and (iii) continue to provide information on measures to promote collective bargaining between the employer and workers’ organizations in small enterprises.

In the context of the previous point, the Committee had also noted in its last comment that, following the reforms introduced by the ordinances of 22 September 2017, company agreements not signed by a trade union organization, particularly in companies with fewer than 50 employees and including those resulting from an employer’s proposal submitted to a vote of the employees, were able to set aside, on a significant number of subjects open to collective bargaining, clauses more favourable to employees established in branch agreements negotiated and signed by representative trade union organizations. Stressing that this option was not consistent with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee had requested the Government to: (i) provide information on the frequency and extent in practice of derogations from higher-level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher-level agreements enjoyed by agreements signed by non-union actors.

The Committee notes that the Government states that the Ministry of Labour does not have information on the number of company agreements signed by elected staff representatives or adopted through a direct vote by the workforce that derogate from branch agreements. However, the Government refers to a study published in 2021 by the Institute for Economic and Social Research (IRES) on collective bargaining practices and the articulation of branch and company agreements after the ordinances of 22 September 2017 in four different branches that concluded that: (i) the possibilities of derogation offered by the ordinances still appear to be little used by companies in the branches studied, with the exception of the Building and Public Works branch; and (ii) except in situations of strong economic or employment constraints, this possibility of mobilising derogatory practices also presupposes a key element: the existence of a negotiation dynamic within companies and the possibility of constructing give and take agreements.

The Government adds that during the health crisis caused by the COVID-19 pandemic, alternative procedures for concluding agreements enabled small companies to cope with the consequences of this crisis by benefiting from the “long-term partial activity scheme”, which was only accessible through a collective agreement. In companies with fewer than 20 employees, the vast majority of these agreements were adopted through a direct vote of employees.

The Committee notes that for its part, the CFE-CGC expresses its concern about the fact that agreements without prior negotiation allow for a substantial and potentially downward modification of the working conditions of employees in small enterprises. The trade union adds that interim evaluation report on the 2017 ordinances published by France Stratégie in 2020 is, in this respect, not reassuring. The CFE-CGC states that, according to this report, a third of 233 agreements with respect to overtime that were examined aimed to reduce the wage increase for overtime. The Committee notes the Government’s response in this regard, indicating that the contextual elements necessary to assess the importance of the rights and compensations granted by these agreements are missing.

The Committee notes the divergent interpretations of the trade union organizations and the Government and the difficulty of obtaining, at this stage, specific statistics on the extent and frequency of the use of the options for derogation recognized to collective agreements concluded by non-union actors. The Committee notes, however, that the Government does not provide any information on whether its request to revise the said opt-out has been taken into account. The Government states that the possibility of derogation recognized to collective agreements concluded through alternative procedures is necessary to enable small enterprises, where trade union presence is very weak, to benefit from the same capacity as large enterprises to adapt the law.

While noting that collective bargaining is indeed a fundamental adapting tool at the disposal of enterprises and sectors, the Committee again stresses that under Article 4 of the Convention, governments are required to promote bargaining between an employer, employers or their organizations on the one hand and workers’ organizations on the other. In these circumstances, the Committee reiterates that it considers that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations through agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention. The Committee therefore requests the Government once again to take, in consultation with the representative social partners, the necessary measures to review the possibility enjoyed by agreements signed by non-union actors to derogate from protective clauses contained in higher-level agreements negotiated by trade unions. The Committee requests the Government to provide information on any progress in this regard.

Promotion of collective bargaining. Platform workers. The Committee notes the examination by Parliament of the Bill ratifying Ordinance No. 2021484 of 21 April 2021 on the modalities of representation of self-employed workers using platforms for their activity and on the conditions for exercising this representation and empowering the Government to supplement through an ordinance the rules organising social dialogue with platforms. The Committee requests the Government to provide information on the results of this examination and on the adoption of any text concerning the exercise of the rights recognized by the Convention by platform workers, regardless of their contractual status.