Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 377, Mars 2016

Effect given to the recommendations of the committee and the Governing Body

1. 27. The Committee last examined this case at its March 2014 meeting [see 371st report, paras 59–63]. The Committee recalls that the complaint presented by the General Confederation of Labour–Workers’ Force (CGT–FO) concerned the conformity of the provisions of the Act of 20 August 2008 to renew social democracy and to reform working hours and its implementing texts, with the provisions of Conventions Nos 87, 98 and 135, which France has ratified. In its latest recommendations, the Committee invited the Government to report on the evaluation of the application of the Act of 20 August 2008 on the basis of the report to be submitted to Parliament on that subject, and on the consultations held in the High Council for Social Dialogue (HCDS) set up for this purpose. The Committee expressed the hope that the evaluation would duly take into account the concerns expressed by the CGT–FO, as well as the conclusions and recommendations made previously by the Committee on the points raised.
2. 28. In a communication dated 10 September 2015, the complainant organization deplores the fact that the Government has not given effect to the Committee’s recommendations on two points that it had raised previously; the first relating to the freedom to appoint the trade union delegate responsible for representing the trade union within the enterprise, particularly in the context of collective bargaining, and the second relating to the appointment and duration of the mandate of a union branch representative, in view of the right of trade union organizations to organize their administration and activities in accordance with Article 3 of Convention No. 87. The CGT–FO states that the amendments to the Labour Code necessary to restore the full freedom to appoint trade union delegates and union branch representatives are very simple to implement, as it would be sufficient to amend article L2143-3 of the Labour Code on trade union delegates and article L2142-1-1 of the Labour Code on union branch representatives.
3. 29. The CGT–FO states that it had reminded the Government on several occasions of the need to amend the Labour Code by implementing the Committee’s recommendations, including at the roundtable meetings and the parliamentary debate on the government bill on “the modernization of social dialogue”, which was recently debated and adopted (Act No. 2015 994 of 17 August 2015 on social dialogue and employment). The CGT–FO considers that restoring full freedom to appoint the trade union delegate and the union branch representative is all the more urgent because the Government has confirmed that it wants to reform the Labour Code in the near future to give even more weight to enterprise-level collective bargaining, including by derogating from legal provisions and sectoral agreements or national collective agreements. Lastly, the CGT–FO refers to two court decisions which, on the basis of the Act in force (article L2143-3 of the Labour Code), deny the CGT–FO the possibility of appointing the trade union delegate of its choice, even though it is representative in the enterprises concerned, having obtained more than 10 per cent of the vote at the election of the works committee. Yet, in both cases, the CGT–FO simply wanted to freely appoint one of its members, who was not elected to the works committee, as the trade union delegate after the members of the works committee had openly made it known that they did not wish to take on the duties of trade union delegate, in addition to those of elected representative to the works committee, which is a different role.
4. 30. In its communication dated 17 July 2014 on the follow-up to the Committee’s recommendations regarding this case, the Government confirms that the reform of trade union representation, introduced by the Act of 20 August 2008 and subsequently extended, has led to a significant overhaul of the rules on the representation of employees in enterprises, at the industry, national and interoccupational levels. The implementation of these new principles was the subject of a comprehensive review in the second half of 2013. In the process of reviewing the Act, substantive work was undertaken with the members of the HCDS, at the same time as the orders on sectoral representation were being published. Three thematic meetings of the High Council and its follow-up committee were organized between September and November. The first sessions were on the review of the reform at the national, interoccupational and industry levels, in particular the implementation of the system on the trade union’s representative voting strength (the “MARS system”). Subsequent sessions focused on the review of the ballot organized for employees of very small enterprises. The last sessions focused on the review of enterprise representation reform. According to the Government, this work was coupled with a broader discussion involving all the actors who had contributed to the implementation of the Act, namely the high courts – such as the Court of Cassation and the State Council – and legal professionals, for the purpose of enriching legal doctrine on the subject. The Government adds that, as provided for by law, the report of the Ministry, which reviewed the implementation of the Act of 20 August 2008, was presented to the National Collective Bargaining Commission (CNNC) on 16 December 2013. According to the Government, the opinion of the CNNC shows that the social partners agreed that the report drawn up by the Ministry accurately set out the different concerns and positions on the application of the Act of 20 August 2008. Moreover, the members of the HCDS submitted an opinion on 20 December 2013 intended to build on the report presented and issue proposals for legislative, regulatory and operational developments concerning the reform of trade union representation.
5. 31. In its communication of 18 December 2015, the Government responded to the CGT–FO’s observations. The Government recalls that the Committee on Freedom of Association had previously invited it to consider the possibility, in consultation with the social partners in the framework of the HCDS, of revising the legislation. This consultation was held on 20 December 2013 and gave rise to the following position of the HCDS on the condition introduced by article 5 of the Act of 20 August 2008 (article L2143-3 of the Labour Code reflecting article 10-3 of the joint position paper of 9 April 2008): “The view that this condition strengthens the legitimacy of trade union delegates by giving them an electoral base is not shared by everyone. However, all the members of the HCDS – with the exception of the CGT–FO and the French Confederation of Christian Workers (CFTC) – find, in practice, no particular difficulties relating to the application of this provision. They highlight that the provisions of the Act, complemented by the Court of Cassation’s jurisprudence, allow pragmatic solutions to be found for situations in which trade unions, which may be representative but do not or no longer have a candidate who personally obtained 10 per cent of the votes, may find themselves. They therefore want the jurisprudence to be codified on this point but do not consider it necessary to develop the law in relation to the principle of freedom of association”. The Government thus considers that it has acted on the recommendation of the Committee on Freedom of Association by reporting to the HCDS and by not developing the law since all members of the HCDS, with the exception of the CGT–FO and the CFTC, did not wish to call into question the principle concerning the appointment of trade union delegates as established by the Act of 20 August 2008.
6. 32. Moreover, the Government specifies that, with regard to the possibility of appointing a trade union delegate of its choice, the CGT–FO’s complaint is unfounded since the Act of 20 August 2008 now stipulates that delegates must be chosen from candidates for occupational elections who have obtained at least 10 per cent of the votes; it does not require that they be chosen from elected members. Indeed, they do not necessarily have to be elected. The Government reiterates that the condition set out in the Act of 20 August 2008 as to the choice of trade union delegates is aimed at strengthening the relationship between workers and their representatives. The Government also refers to the decisions of 2010 of the Court of Cassation and the Constitutional Council, which held that the provision complied with national law. In addition, the Government states that the Act of 20 August 2008 ensures compensation for any situation in which it is impossible to appoint a trade union delegate for a representative trade union which no longer has any candidates who obtained at least 10 per cent of the votes in the elections. In such cases, the Act allows the representative trade union to appoint a trade union delegate from among the other candidates or, failing that, from among its members within the enterprise or establishment. Furthermore, according to the Government, a situation where the trade union does not have anyone it can appoint as trade union delegate cannot be equated to a situation where persons who could be appointed refuse to be. Thus, the case cited by the CGT–FO, in which all candidates in the occupational elections stated that they did not want to be appointed as trade union delegate, cannot be equated to a situation where it is impossible for a trade union to appoint a trade union delegate from among the candidates, which would permit it to appoint one of its own members. The Government is of the opinion that, in the abovementioned case, the judge rightly observed and sanctioned attitudes that had the effect of circumventing the legal requirements.
7. 33. The Committee takes note of the detailed information provided by the complainant organization and by the Government. It recalls that, in its previous examinations of the case, the Committee had declared that the right of workers’ organizations to elect their own representatives freely was an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 391]. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, eligibility conditions or the re-election or removal of representatives. While noting that, except for the CGT–FO and the CFTC, the HCDS as a whole did not want to call into question the principle of the appointment of the trade union delegate as set out in the Act of 20 August 2008, the Committee must recall that it considers the right of workers’ organizations to organize their administration and activities in accordance with Article 3 of Convention No. 87 includes the freedom for organizations recognized as representative to choose their trade union delegates for the purposes of collective bargaining, as well as the possibility of being assisted by advisers of their choice. The Committee expects the Government to ensure that the system established under the Act of 20 August 2008 does not exclude such possibilities. Taking into account the above, the Committee invites the Government to continue an open dialogue with the social partners to revise the legislation in light of this principle without delay.
8. 34. With regard to the freedom of a trade union that has failed to obtain 10 per cent of the votes cast in the most recent elections to appoint a union branch representative and determine the duration of their mandate (article L2143-3 of the Labour Code), the Government recalls that the Act of 20 August 2008 grants non-representative organizations prerogatives previously enjoyed only by representative trade unions (constitution of a trade union branch; appointment of a trade union representative; authorization to nominate candidates to the first round of occupational elections; negotiation and conclusion of a pre-election agreement on the organization of elections). The Government states that, under the Act, the mandate of a union branch representative expires following the first occupational elections held after their appointment, and that a representative who fails to reach the 10 per cent threshold required for their union cannot be reappointed immediately. The trade union nevertheless remains free to appoint another employee as union branch representative, and the employee appointed originally may, in any event, be reappointed as union branch representative as from six months prior to the subsequent occupational elections in the enterprise. The Government is of the opinion that this provision, which allows the trade union to appoint another employee, ensures the trade union’s freedom to appoint a representative, and the trade union is free, between elections, to determine the duration of the mandate of the union branch representative it has appointed. The Government adds that this issue is addressed in the report being prepared for transmission to Parliament, on the basis of which the HCDS will submit the conclusions to be drawn from the application of the Act of 20 August 2008 to the Labour Minister so that she can determine, where appropriate, whether adjustments are necessary. During the previous examination of the case, the Committee recalled that, pursuant to Article 3 of Convention No. 87, the appointment and duration of the mandate of a union branch representative should be freely determined by the union concerned in accordance with its constitution. The Committee had thus concluded that it was for the union to decide on the person who was best equipped to represent it within the enterprise and to defend its members in their individual claims, even when that person had failed to obtain 10 per cent of the votes cast in occupational elections. Noting that this matter could be discussed in relation to the necessary adjustments, the Committee hopes that the analysis of the HCDS on the matter will be presented to the Parliament and that discussions will be held, with the participation of the social partners, on the revision of the legislation in light of the abovementioned principle without delay.