New proposals on the prevention and resolution of industrial disputes
In mid-February 1998, France's Economic and Social Council adopted an opinion on the prevention and resolution of industrial disputes. The report emphasises the weakness of social dialogue in France, and concludes that the prevention and solution of disputes should preferably be brought about by the parties concerned, before the state, the legal system or mediators become involved.
France's Economic and Social Council (Conseil Economique et Social, CES), a kind of consultative parliament, is comprised of representatives of employers' organisations, trade union organisations deemed representative at national level, representatives of various social groups and leading figures qualified in economic and social matters. Its main function is to provide information to government decision-makers, and furthermore to fuel the public debate, by formulating opinions. It may either intervene on an issue of its own accord or be commissioned by the government to act.
In January 1997, a year after the widespread strike of 1995, and a few months after the 1996 lorry drivers' strike, the Government led by Alain Juppé asked the CES to look into the prevention and resolution of industrial disputes and come up with proposals for improving the situation. The project was entrusted to the CES "labour" section, which appointed Guy Naulin (of the CFTC trade union confederation) as its rapporteur. The opinion bearing its findings, entitled Prevention and resolution of industrial disputes ("Prévention et résolution des conflits du travail", Avis et rapports du Conseil économique et social. Les Editions des Journaux Officiels. Paris (1998)) was adopted by the CES on 11 February 1998 by a slim majority (79 for, 20 against and 70 abstentions), having given rise to heated debate. There are two main parts to the opinion: a report on the current situation, and proposals for action.
Paradoxical tendency toward disputes and inefficient mediation procedures
The CES opinion highlights a paradoxical situation described thus: "while large-scale industrial action has recently affected essential sectors, caught the imagination, and provoked controversy, the overall level of disputes in France ... has rarely been so low."
The downward trend in the number of strikes, of strikers, and of individual working days lost, linked to the reduction in the length of strikes, seems to have been especially noticeable since the end of the 1970s (FR9801190N). The most frequently offered explanations of this development involve the employment situation and the period of recession - or of slower growth - that France has experienced.
However, while employees are finding it difficult to get a hearing, "outbreaks of often unplanned disputes, whose resolution has turned out to be equally difficult " have occurred: "the years 1977, 1986-7, and 1995 witnessed significant outbreaks of widespread disputes in which companies in the public sector generally played an influential role ." The report goes on to conclude that disputes confined to certain fields of activity, such as those involving the lorry drivers in 1992, 1996 and 1997 (FR9711177F), must also be added to this picture.
In order to prevent and resolve industrial disputes, provision for conciliation and mediation procedures has been on the statute books for more than a century, although it has been more detailed since the 1950s. A request for mediation can be made by either of the two parties, or at the initiative of the Minister for Labour. The mediator, chosen from a list of figures with recognised "moral authority" and skills in the domains of economics and industrial relations, has the task of making proposals aimed at solving the dispute.
However, the CES opinion's assessment is that: "as a corollary of the declining number of disputes, but also as a sign of some lack of interest shown by employers and unions, it seems that the ways in which disputes are resolved by negotiation and mediation, in the sense attributed to them by the Labour Code, have become obsolete." Other types of mediation are being steadily established, whether by judges, who have the power to appoint an expert or a consultant, or by the state. The CES opinion declares its surprise on this matter, because " the state has abandoned the lists of mediators in favour of ad hoc appointments." The CES feels that "these informal channels for appointments may appear haphazard and might cause one of the two sides to question the mediator's true degree of independence."
The weakness of social dialogue
In its opinion, the CES lays great emphasis on the ineffectiveness of social dialogue between employers and trade unions in France. It especially highlights: the lateness of the establishment of workplace union branches (in 1968); the increasing number of practices derogating from the general legislation that are provided for in many company-level agreements; the shift in the bargaining level from sector to company (with no new balance between these levels having been found); and the insufficient number of structures for representation and dialogue that are currently functioning in companies.
Proposals for action
The CES's proposals for action concern three main points:
- improving the supply of information on disputes. The CES notes that there is no available synthesis of data on disputes. Statistics are only gathered on open conflict (overt strike action). The other forms of discontent, or demonstrations aimed at supporting claims, such as go-slows and work-to-rules, do not figure in the data. Moreover, data on the civil service is incomplete and unreliable, which is why the CES would like to see "the state collecting all the statistics on industrial disputes in their various forms, in both the private and public sectors. This would enable a better understanding of industrial relations, and allow changes to be observed in the way disputes start, develop and are solved." The idea of setting up an "industrial relations observatory" is thus put forward;
- resolving collective labour disputes. The CES report does not propose upheavals in current procedures but simply suggests ways of making them more efficient. However, the necessity for developing collectively-agreed procedures for resolving industrial disputes is emphasised; and
- preventing disputes. For the CES, "the prevention of industrial disputes cannot be reduced to the establishment of a strategy aimed at stopping them from happening. Such thinking would reveal a fundamental misunderstanding of industrial relations". A more relevant approach would be to create tools for identifying the sources of disputes and controlling how they proceed. With this objective in mind, the CES has formulated several proposals aimed at improving the way that employee representative bodies work and adapting their working practices to contemporary business life, especially in the field of economic information and consultation.
According to the rapporteur, Guy Naulin, the parties' capacity to take initiatives must be restored, whilst the conciliation procedure also needs strengthening. The prevention and solution of disputes should preferably be brought about by the social partners concerned, before the state, the legal system or mediators become involved.
Explanation of the CES vote
The opinion provoked a heated debate. The group of representatives of private sector businesses in the CES voted against the draft opinion, and its spokesperson, Jean Domange- former head of the industrial relations committee of the CNPF employers' confederation - condemned the logic behind the report, which he claimed was based on the idea that industrial relations is a question of conflicting interests. Moreover, he regretted that the report suggested neither the extension of the obligation to give prior notice of strike s nor the introduction of the obligation for a majority vote by workers prior to the launch of strike action. However, the report did win the votes of the CFE-CGC, CFTC, FEN and CGT-FO trade unions. The last-named organisation voted for the report despite the reservations it has on the establishment of a national industrial relations observatory: "that is a much more sensitive subject", it explained, "as the assessment of the observatory's objectivity will necessarily lead to conflict or be manipulated."
However, the CFDT and the CGT union confederations abstained. The former considers that "the conflict of interests and of ways of viewing reality is inherent in labour relations ... the basis of negotiation being the acknowledgement and confrontation of conflicting interests. Negotiation is the expression of power relations with the willingness to find a balance between them by coming to agreements based on constructive responses ... However, the findings treat negotiation and conflict as de facto polar opposites, which explains why some proposals on the resolution of disputes have provoked further questioning. This is true for the development of collectively-agreed procedures, in which it appears as if the suggestion is for 'industrial peace' clauses, without the context being made clear. " The CGT abstained because, among other reasons "there is still too much which is not covered by legislation or collective agreements. Besides, the fact that the agreements can only be acted upon by the signatory organisations cannot satisfy the CGT."
The key point of the debate carried out in the CES is that all the social partners have been able to discuss, in detail, the current weakness of the dialogue between them. The fall in the number of striking workers, number of strikes and the average length of strikes observed since the 1970s cannot conceal the underlying tendency towards disputes which in France is often dramatically demonstrated by general strikes, or strikes supported by the majority of the population, as was the case, in 1987 and 1995. (Alexandre Bilous, IRES)