35-hour week law challenged by Council of Europe Committee

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Following an action brought by the CFE-CGC trade union confederation, the Council of Europe's European Committee of Social Rights reportedly found in early 2002 that the working time scheme for managerial and professional staff, as laid down in France's 2000 law on the 35-hour week, is in violation of the European Social Charter.

France's second law relating to the statutory 35-hour working week, referred to as 'Aubry II', was adopted in January 2000 (FR0001137F). It created three categories of managerial and professional staff (cadres) for working time purposes. These are: (1) 'senior managers', whose conditions lie outside the application of the Labour Code's provisions on working time; (2) managerial and professional staff working as part of a team, for whom working time regulations are identical to those for other employees; and (3) 'intermediate managerial and professional staff', whose working time is calculated in days rather than hours.

For the intermediate managerial and professional staff, the second Aubry law set the maximum number of days worked annually at 217, and laid down just two other working time limits: an obligation for there to be a minimum 11-hour rest period between days worked; and a minimum weekly rest period lasting 35 consecutive hours.

During the discussions prior to the passage of second Aubry law, severe criticisms of its provisions on the working time of managerial and professional staff were made by 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 General Confederation of Labour (Confédération générale du travail, CGT), the General Confederation of Labour-Force ouvrière (Confédération générale du travail-Force ouvrière, CGT-FO) and the French Christian Workers' Confederation (Confédération française des travailleurs chrétiens, CFTC) (FR9909105F). CFE-CGC, CGT and CFTC organised a protest demonstration by managerial and professional staff in October 1999 (FR9911118N). The Movement of French Enterprises (Mouvement des entreprises de France, MEDEF) employers' confederation, on the other hand, broadly welcomed the idea of counting working time in days.

CFE-CGC, a national union confederation with representative status, which organises only managerial and professional staff, technicians and supervisory staff, has focused its complaints on the issue of working time for intermediate managerial and professional staff being calculated in days. It argues that the new legislation has removed the maximum working hours laid down in labour law (10 hours per day, 44 hours per week, and 1,730 hours per annum), which is tantamount to allowing an employer to demand that the staff concerned work 13-hour days and 78-hour weeks.

CFE-CGC has brought its case before various European authorities in an attempt to have this provision of the second Aubry law annulled. It first brought a suit before the European Court of Human Rights, arguing that the law discriminates against managerial and professional staff. No ruling is, however, expected for another two or three years.

CFE-CGC also decided to make a complaint to the Council of Europe's European Committee of Social Rights, a course of action open to trade unions since 1998. This Committee, comprised of 12 experts on social law, is responsible for verifying that the European Social Charter, adopted by the Council of Europe in 1961 and revised in 1996, is applied correctly. The Committee ruled the complaint admissible in November 2000.

Reports indicate that the Committee, whose as yet unpublished decision has been the subject of comments in the press in early 2002, has found the French law on the 35-hour week to be in violation of the European Social Charter, which stipulates that member states are committed to 'to provide for reasonable daily and weekly working hours'. The Committee reportedly felt that working 78 hours per week is unreasonable and that the French law does not provide enough guarantees, as it fails to make it necessary for collective agreements to set the maximum daily and weekly hours, and excludes paid overtime for managerial staff subject to the 'flat-rate days' scheme.

However, the Committee reportedly did not agree with CFE-CGC on the unreasonable character of a 13-hour working day. Nor did it apparently consider that the reduction of working time expressed in terms of the number of days worked and the lack of a measurement in hours was in violation of the right to a normal family life, or of the right to strike.

The Council of Europe's Committee of Ministers not yet decided whether to take the advice of the Committee of Social Rights on this issue. Its ultimate recommendations will, however, not be binding on the French government.

CFE-CGC welcomed the Committee's reported decision, and hopes that it will spur the French state on to amending the law. CFE-CGC 'noted the fact that the European Trade Union Confederation (ETUC), had supported the French government's stance against CFE-CGC's claim, which speaks volumes about that organisation's willingness to defend managerial staff'.

Not all French unions have the same assessment of the rules about the reduction of working time for managerial and professional staff. The French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT), which had greeted the 'flat-rate days' scheme positively, feels that the guarantees offered by the Aubry law are sufficient.

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