Act on renewal of social dialogue in the public sector

The law on the reform of collective bargaining in the public sector has finally been approved by the French parliament after two years of discussions. The law alters the way trade unions’ representativeness is assessed in the public sector, in line with regulations already in place in the private sector. Workplace elections will now determine the extent to which trade unions are involved in negotiations, can sign agreements and hold seats on tripartite advisory bodies.

Background to renewal of Act

The Act on the renewal of social dialogue in the public sector (in French) was finally adopted by parliament on 5 July 2010. A consultation on this subject with trade unions, launched in October 2007, led to the Bercy Agreements (in French) signed on 2 June 2008, and named after the district of Paris where the Ministry of Public Services (DGAFP) is located. The Act is a step towards the implementation of the Bercy Agreements, concluded between the Minister for Budget and Civil Service, the Secretary of State for the Public Service and six of the eight representative unions in the public sector: the General Confederation of Labour (CGT), the French Democratic Confederation of Labour (CFDT), teachers’ union the Unitary Union Federation (FSU), the National Federation of Independent Unions (UNSA), Solidaires which comprises 10 independent unions, and the French Confederation of Professional and Managerial Staff – General Confederation of Professional and Managerial Staff (CFE-CGC).

It has taken two and a half years to finally agree on a document that profoundly alters the rules on industrial action and social dialogue within the public sector. This law has much in common with the reform in the private sector (FR1007031I), brought about by the Act of 20 August 2008 (in French) on the renewal of social democracy. It amends the rules on trade union representativeness within the civil service, and means that trade union representativeness will be based only on the results of workplace elections. Until now, trade unions could also benefit from a presumption of representativeness, derived from their historic role. The law sets out new rules for the validity of agreements, strengthens the role of collective bargaining in the public service and widens the scope of the subjects that can be discussed between the social partners.

Scope of collective bargaining

The new law extends the scope of collective bargaining in the public sector beyond the issue of wages, to which discussions were previously confined. Trade unions representing civil servants are now able to participate, with the competent authorities, in negotiations related to:

• wages and purchasing power,

• the conditions and organisation of work;

• career pathways and professional advancement;

• vocational training and continuing education;

• social protection, security and health at work;

• issues around gender equality.

The new law sets out the hierarchy of agreements, concluded at different levels. For example, an agreement setting out the implementation of another, signed at a higher level, may only clarify or improve the higher level agreement and does not have the authority to change the agreement. Trade unions with at least one seat on the advisory bodies, relevant to the subject covered by the negotiation, may participate in the negotiations.

Organisations permitted to sign a collective agreement

To strengthen the legitimacy of agreements, the law sets the criteria for certifying their validity. The new rule of the majority will be the sole criterion used to validate agreements beyond 2014, which marks the end of the transitional period.

To be valid, a collective agreement must be signed by one or several trade unions that received at least 50% of the vote in workplace elections (organised at the bargaining level). However, throughout the transitional period (fixed by decree), due to end no later than 31 December 2013, the agreement is valid if signed by one of the following:

• one or more of the trade unions that obtained at least 50% of the vote;

• one or more of the trade unions that received at least 20% of the vote in workplace elections, in the absence of opposition from one or more of the other trade unions involved in negotiations that obtained a majority of the vote in the recent workplace elections.

The aim of the law is to enhance the legitimacy of trade unions by strengthening democracy through elections. The workplace elections therefore have become vital for assessing those organisations that can participate in collective bargaining and can sign agreements. The possibility of fielding candidates in these elections is no longer limited to those unions with a ‘presumption of representativeness’, and the elections are now open to all trade unions of public servants in the civil service in which the election is held, and civil servant trade unions belonging to confederations, under three conditions: that they have legally existed for at least two years; that they respect republican values; and that they are independent.

These new rules will apply to trade unions wanting to field candidates in all elections held in the civil service, and for the main consultative bodies of the public service: technical committees and joint administrative committees of the three civil services, national advisory committees, and in all instances of dialogue, also present in a number of public or private organisations that employ public sector employees (for example, La Poste or France Telecom).

In the private sector, a trade union must receive at least 10% of the vote in workplace elections to participate in the negotiations at company level, and 8% for an industry-wide agreement. But in the civil service, it is the number of seats in the representative bodies that determines the presence or the exclusion of a particular trade union. Thus, according to the press agency Agence France Presse (AFP), a draft decree (in French) sets the maximum number of staff representatives in the technical committees at 15 (these committees are important consultative bodies because they determine the representativeness of trade unions by department). The seats are distributed using proportional representation. In these circumstances, a trade union will be required to receive between 4.5%–6% of the votes to be authorised to negotiate on behalf of its members.

Commentary

The law represents a shift in the rules governing public sector employees so that they converge with those in the private sector. The change could significantly alter the balance of what is commonly called ‘the trade union landscape’ by challenging the privileged position of trade unions that previously had a monopoly in workplace elections, or to designate representatives to participate in the work of certain bodies.

However, the parliament did not seek, or dare, to break with the strict application of the principle that civil servants are situated within a specific legal and regulatory framework – a principle that justifies the lack of any legal value attached to collective agreements covering these workers. Indeed, the Act does not consider collective agreements as having the force of law, unlike in the private sector, and makes a distinction between validity of the agreement and its normative value. For the moment, public authorities still have the ability to decide whether to honour the terms of agreement. Nevertheless, the law lays the foundations for future recognition of the normative value of collective agreements within the public sector, reflecting on the ‘contractualisation’ of law in the public sector, in order to ‘reconcile’ it with private sector norms. Perhaps in a few years, if the political and social environment permits, more radical change will be undertaken.

Hélène Tissandier, Université Paris-Dauphine, Human and Employment Relations Agency (HERA)