Social partners agree new representativeness and collective bargaining rules

In April 2008, four of the current eight representative social partner organisations adopted a so-called ‘common position’ on social dialogue. The document makes provision for basing representativeness on the votes received by trade unions during workplace elections. However, the signatories are not satisfied with the way in which the document has been transcribed into a draft bill, and other social partners had already criticised the agreed common position.

Following the multi-industry agreement on modernising the labour market in January 2008 (FR0802049I), four of the eight representative social partner organisations adopted a so-called ‘common position’ on representativeness and collective bargaining on 9 April 2008. Four months after discussions began on the issue of social dialogue, the common position was approved, on the employer side, by the Movement of French Enterprises (Mouvement des entreprises de France, MEDEF) and the General Confederation of Small and Medium-sized Enterprises Confédération générale des petites et moyennes entreprises, CGPME). On the trade union side, the common position was approved by the French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) and the General Confederation of Labour (Confédération générale du travail, CGT).

New representativeness rules proposed

Up until now, trade union representativeness is based on the assumption of the irrefutable representativeness of the five major trade unions in the French labour market, namely: CFDT, the French Confederation of Professional and Managerial Staff – General Confederation of Professional and Managerial Staff (Confédération française de l’encadrement – confédération générale des cadres, CFE-CGC), the French Christian Workers’ Confederation (Confédération française des travailleurs chrétiens, CFTC), CGT and the General Confederation of Labour – Force ouvrière (Confédération générale du travail – Force ouvrière, CGT-FO). In the future, however, trade union representativeness would be based on workplace election results (FR0502110F, FR0309102T), with different thresholds depending on the level.

• At company level, representative trade unions would be those that obtain jointly at least 10% of recorded votes in the first round of workplace elections.

• At sectoral level, representative trade unions would be those that obtain at least 8% of recorded votes in the first round of workplace elections – this is a transitional threshold defined for an indeterminate period.

• At national level, representative trade unions would be those that:

  • obtain at least 8% of recorded votes in the first round of workplace elections;

  • are also representative throughout the country, as well as in several sectors of industry, construction, commerce and services.

Any other trade union which has been legally created and existed for at least two years would be able to present candidates in the first round of workplace elections.

New rules regarding validity of collective agreements

The validity of collective agreements – which to date requires the signature of just one trade union, provided that there is no opposition from other majority unions (FR0606039I, FR0507104F) – would be effective in the following instances.

• In companies, if one or several trade unions which obtain at least 30% of recorded votes in the workplace elections sign the agreement.

• In sectors, from 2014 onwards, if one or several trade unions which obtain at least 30% of recorded votes in the workplace elections sign the agreement.

• At national level, also from 2014 onwards, if one or several trade unions which obtain at least 30% of recorded votes in the workplace elections sign the agreement.

In all of these instances, an agreement becomes valid only if none of the trade unions representing a majority in terms of votes cast contests the agreement.

After a transitional period – that is, from 2014 onwards – the social partners’ common position proposes a four-yearly revision of the list of representative trade unions at sectoral and multi-industry levels.

Moreover, trade unions will be able to designate union representatives (délégué syndical) with the power to negotiate, but only when their unions are recognised as being representative in the company. Any other trade union section which has been legally created and existed for at least two years could designate a representative at company level without bargaining powers.

In addition, sectoral agreements could provide for bargaining in companies employing between 10 and 200 workers where trade unions exist, through:

• an employee representative (délégué du personnel)

• an employee who is given a mandate by a trade union.

Finally, ‘company-level agreements concluded with representative unions’ would be able to, ‘on an experimental basis, exceed the maximum amount of overtime (218 hours a year) specified in the sector-level agreement’.

Social partner and government reactions

The Minister of Labour, Social Affairs and Solidarity, Xavier Bertrand, welcomed the social partners’ common position and, in a press statement, confirmed that it will ‘serve as a basis for drawing up a draft bill’.

CFDT National Secretary, Marcel Grignard, believed that ‘the document legitimises the social partners and consolidates social democracy and contracts’. The new measures will enable employees, when voting in their workplaces, ‘to give greater legitimacy to their representatives and make their trade unions stronger, thereby ensuring greater support for their collective demands’. CFDT’s National Treasurer, Gaby Bonnand, identified five major areas where progress has been made – the main one ‘providing for the means to increase trade union membership levels’. The text introduces the principle that an employee’s union membership should be financially supplemented by companies, and ‘one of the ways of doing so would be trade union vouchers’.

CGT General Secretary, Bernard Thibault, stated that the project is ‘a revolution which until now had always been rejected’, thereby satisfying some of CGT’s long-standing demands. In CGT’s view, the European Works Councils (Comité d’entreprise) should not just be a consultative body, but it should have voting powers in certain areas; for instance, restructuring due to stock market fluctuations – other than proven economic difficulties – should be subject to the agreement of the works council.

Strong criticism of common position

On the other hand, the social partner organisations which did not sign the common position were highly critical of the agreement.

The President of the Craftwork Employers’ Association (Union professionnelle artisanale, UPA), Pierre Martin, condemned the document and criticised MEDEF (FR0712039I) for agreeing to it. For its part, UPA refuses to ‘support a common position that does not exist’ and that ‘excludes 92% of French companies’.

CGT-FO considered that the document ‘represents a reversal in social, trade union and democratic terms’. The confederation fears that the text’s implementation would, on the one hand, be ‘the automatic end of sectoral collective agreements which ensure a minimum of equal rights for all employees, regardless of the size and location of their company’ and, on the other hand, make it ‘even more difficult to set up union branches in small and medium-sized enterprises (SMEs)’. Finally, CGT-FO deplores the fact that the draft prohibits ‘employees of very small enterprises, unemployed people and pensioners from voting for trade union representativeness’.

CFTC thinks that the document ‘opens the door to challenging the 35-hour week’ with ‘the possibility of renegotiating, company by company, other terms regarding working time, including time-off in lieu and day/hour overtime contracts’. The latter refers to contractual agreements for executives setting out the number of regular hours of paid overtime; any additional overtime must be counted and paid for on top of the regular amount. The confederation also objects to any measure that is unfavourable for workers, ‘in particular in companies without a trade union presence, with the latter being replaced by elected members of workplace representative bodies (Institutions representatives du personnel), for whom the balance of power’ regarding their employer is not in their favour.

CFE-CGC President, Bernard Van Craynest, believes that the ‘compensation won by employers is huge’. This outcome is due to ‘the illogical situation of basing the legitimacy of actors on elections without having explicitly envisaged how all employees are going to give their opinion’. Also in April, Mr Van Craynest – who did not sign the common position – started looking into the possibility of merging with the National Federation of Independent Unions (Union nationale des syndicats autonomes, UNSA), which is equally critical of the common position.

On 20 May 2008, in the general context of restructuring the industrial relations system, the Coalition of Representative Employers’ Associations in the Social Economy Sector (Union de syndicats et groupements d’employeurs représentatif dans l’économie sociale, Usgeres) asked the Ministry of Labour, Social Affairs and Solidarity (Ministère du Travail, des Affaires Sociales et de Solidarité) to recognise ‘the legitimacy of social economy employer organisations to sit on a number of national social dialogue bodies alongside recognised representative employer organisations’.

Recent developments

However, on 29 May 2008, Minister Bertrand’s presentation of the draft bill, which was meant to be based on the common position, led to heated reactions from those social partner organisations which had signed the position. This reaction is due to the fact that the law would grant ‘much scope to company-level bargaining and simplify overtime arrangements and time-off in lieu, which could be freely set’.

CFDT’s General Secretary, François Chérèque, considered that the draft bill was provocative regarding Article 17 of the common position. MEDEF President, Laurence Parisot, invited the government ‘to respect’ the provisions of the common position that was signed by the social partners on 9 April, as it had done on 12 June 2008 when the 2007 agreement on modernising social dialogue (FR0704039I) was transposed into law. Ms Parisot emphasised that, in her view, ‘the social partners can not only be a source of proposals, but also be actors of transformation’.

After sending their joint letter to the government regarding the draft bill, CGT and CFDT decided to call for a demonstration on 17 June to defend the current weekly working time of 35 hours, as well as pension rights.

Benoît Robin, Institute for Economic and Social Research (IRES)