Reform of representativeness and social dialogue

The French Supreme Court ruled in March 2010 that the reform of the laws governing trade union representativeness approved by the French parliament in 2008 did not infringe International Labour Organization conventions or European law. At the same time, the government presented a bill to extend the reform to trade unions representing civil servants and workers in companies with fewer than 50 employees, who were not covered in the 2008 ‘Law on social democracy and working time reform’.

Changes to trade union representativeness

In August 2008, the French parliament adopted a law on ‘social democracy and working time reform’, which has radically changed the rules regarding trade union representativeness. By 2012, the majority rule (which states that a trade union affiliated to a representative confederation at national level is presumed to be representative) will be abolished, and, in order to be representative and participate in company-level bargaining, a trade union must now obtain at least 10% of the votes in workplace elections. In a decision on 14 April 2010 (Decision No. 09-60426 (in French)), the French Supreme Court (Cour de cassation) ruled that the new reform does not infringe International Labour Organization (ILO) Conventions or European law. The court stated that even if the right to collectively bargain with an employer in principle had become one of the essential elements of the right to form and join trade unions, guaranteed under Article 11 of the European Convention on Human Rights (see also EU0905029I), the state nevertheless remains entitled to restrict this right to representative trade unions. In another decision on 18 June (Decision No. 10-40005 (in French)), the Supreme Court refused to refer the matter to the Constitutional Court (Conseil Constitutionnel) as it considered that the requirement of a reasonable process to determine the representativeness of a trade union did not infringe the principle of freedom of association. It seems, therefore, that the reform of union representativeness is now firmly established.

Social dialogue in micro-businesses

At the same time, the government presented a bill – ‘Social dialogue in micro-businesses’ – to extend the reform to employers with fewer than 11 workers, who were not covered by the previous reform in 2008. As described above, representativeness will now be measured by the results of workplace elections. But this system excludes workers in very small businesses (très petites entreprises) since the threshold of the legal obligation to establish staff representatives is 11 workers. Therefore, the new bill proposes the creation of a specific vote for these enterprises – a ‘representativeness vote’. The vote will be organised at the regional level every four years, and only employees of very small businesses will be able to vote. To present candidates, trade unions will have to meet three criteria: they must show respect for republican values and independence; they must have been legally established for at least two years; and they must already be active in the local area. The representativeness of the trade unions at professional or national level would then depend on the result not only of works council elections but also of this so-called ‘quadrennial’ election. The bill, presented to the social partners in April, is due to be adopted by parliament shortly.

Reform of collective bargaining for civil servants

On 23 June, the French parliament approved reforms to the collective bargaining process for civil servants. Key to this reform is that from now on only trade unions that have obtained at least 50% of the votes cast in the latest workplace elections (majority trade unions) will be able to conclude a collective agreement.

Helen Tissandier, HERA