'Step forward' for employers on representativeness

The three biggest employers’ organisations in France have adopted a common position on the subject of representativeness. Although several issues remain unresolved, particularly the validity of agreements, the proposals will clarify the extent to which an employers’ organisation can be judged representative of an industry in relation to its size. While the government considers the decision, reached on 19 June 2013, a ‘step forward’, public authorities say it is weak.

Background

The term representativeness, in the French context, is the extent to which a trade union has the capacity to act as a spokesperson for a group of workers that is larger than the union’s membership. While this approach to determining a trade union’s capacity to sign collective agreements, field candidates in workplace elections and other legitimate activities led to an important debate and created the momentum for reform such as Law n° 2008-789 of 20 August 2008 on the renewal of social democracy and reform of working time (in French), the issue of employer representativeness was largely ignored.

Less than a year after the first significant social conference was held, the government asked employers to make proposals on the issue of representativeness, otherwise it would legislate to introduce reform – a threat that was made several times.

The three main employers’ organisations – the Movement of French Enterprises (MEDEF), the Confederation of Small and Medium-sized Enterprises (CGPME) and the Craftwork Employers’ Association (UPA) – agreed on a proposal with some difficulty, as the CGPME wanted representation to be based on sectoral and geographical criteria while the MEDEF wanted representativeness to be based solely on sectoral criteria. However, seven criteria, modelled on those used for assessing trade union representativeness, were eventually set up for employers’ organisations.

Membership criteria

According to the common position on the subject of the representativeness of employers’ organisations (in French, 131 KB PDF), representativeness, for employers, is defined as:

the ability of an employers’ organisation to speak on behalf of, and engage with, companies that are not members of the organisation, but share the same characteristics as members of that organisation.

As with the measurement of trade union representativeness, the most crucial of the employers’ organisations’ criteria concerns the size of the membership of the organisation, in relation to the size of the companies. This criterion provides an ascending scale of representativeness (from low to high), but in this case it relies on the organisation’s membership only and not on the results of elections.

The joint proposal states that:

it is essential to take into account the number of member companies from those included within the scope of activities considered. Representation, defined as the capacity of the employers’ organisation to engage with non-member companies, requires that the organisation’s claims of being represented must be justified, through its membership, by its actual role within the range of activities in which it operates.

However, the organisations have failed to agree on the weighting criteria for this process.

In addition, because the structure of these organisations allows companies that are professional associations to be members, interprofessional representation takes into account the membership of these organisations at sector level that are relevant in the industrial, construction, retail and service sectors.

Further criteria

Six other criteria applying to employers’ organisations, albeit lacking in detail, will also be taken into account. These are:

  • the number of years an organisation has been in existence;
  • the influence of the organisation, determined by activity and experience. Activity will be assessed by the actions of the organisation concerned that demonstrate its effectiveness and presence;
  • financial transparency, established by the provision of certified annual financial statements prepared in accordance with the law and by the certification and publication of previous accounts;
  • the respect of the organisation for republican values;
  • independence;
  • geographical location and professional orientation.

The agreement concluded is thus minimal in its content, and excludes a number of areas over which there is still disagreement. For example, sensitive issues have not been resolved, such as the minimum threshold of representativeness for the right to negotiate, the value of an employer’s signature, the position of organisations such as cooperatives, non-profit organisations, and charities, or the position of organisations representing professionals or farmers.

Reactions

The government has ‘noted’ the common position, which constitutes a ‘step forward’. However, the public authorities have commented that the proposal is weak. The government will now take over and the Labour, Employment and Social Dialogue Minister, Michel Sapin, will ask the Department of Labour to set up a committee to propose measures that are necessary to ensure effective implementation within a secure legal framework. It will submit its proposals in October 2013.

More details can be seen about the employers’ conference in the roadmap of the ‘grand social conference’ of 20 and 21 June 2013 (in French, 1.3 MB PDF)) (FR1307021I).

Other organisations intend to enter the debate, including the Union of Employers of the Social Solidarity Economy (UDES, formerly USGERES), which is struggling to be recognised as an employer’s organisation. UDES has also made a proposal on the issue of representativeness (in French).

Commentary

The MEDEF is reluctant to allow organisations other than the three signatories to the document to claim representativeness as it is concerned that this will weaken employers’ positions in relation to the five representative unions. This attitude largely explains the slow pace of the negotiations and their relative failure. On 18 June 2013, the outgoing president of the MEDEF, Laurence Parisot, said, ‘We do not see the need to question our legitimacy’. The new president, Pierre Gattaz, who was elected on 3 July 2013, will certainly need to deal with this issue as a priority. However, the issue is extremely complex and it does not appear that an objective criterion can easily be found that will not call into question the status quo. (See also the Montaigne Institute’s study on the proposals for employer reform (in French).

Hélène Tissandier, IR Share, Université Paris-Dauphine

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