New rules for union representativeness and working time

In July, the law on ‘renewing social democracy and working time reform’ was adopted and will come into force at the end of summer 2008. This text changes the rules of collective bargaining regarding two key aspects, namely validating agreements and trade union representativeness. But above all it has sparked off fierce controversy as it enables companies to renegotiate agreements and thereby challenge the 35-hour week – 10 years after it was introduced.

On 23 July 2008, parliament finally adopted a law on ‘social democracy and working time reform’, which was presented by the Minister of Labour, Xavier Bertrand, and is partly based on the ‘common position’ (FR0807039I). The latter was signed by the social partners on 10 April, including: on the trade union side, the General Confederation of Labour (Confédération générale du travail, CGT) and the French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT), and, on the employer side, 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).

The new law consists of two parts: one on trade union representativeness and the other on working time.

Agreements validity linked to trade union representativeness

The first part of the law partly incorporates the ‘common position’ signed by CGT, CFDT, MEDEF and CGPME, which should radically change the rules regarding trade union representativeness – and thus the trade union scene in France – by 2012. The law puts an end to the assumption of irrefutable representativeness which, since a 1966 decree, made it possible for five trade union confederations – 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) – to be present in companies and negotiate.

This rule will be abolished in five years time and – as set out in the ‘common position’ – in order for a trade union to be representative and participate in company-level bargaining, it must obtain at least 10% of the votes in workplace elections. This threshold is set at 8% for bargaining at sectoral and national levels.

Any trade union existing for at least two years can create a trade union branch in a company of more than 50 employees; however, it will not be able to bargain or conclude a collective agreement without obtaining at least 10% of the votes. Thus, collective agreements will be valid only if they have been concluded by one or several trade unions that have obtained at least 30% of the votes at workplace elections and without objection from trade unions that have obtained a majority of the votes.

In companies with fewer than 200 employees and no trade union representative, employers will be able to negotiate with non-union employee representatives.

In light of the pending legal proceedings against former leaders of the Union of Metalworking Industries (Union des industries et métiers de la métallurgie, UIMM) employer organisation, the law provides for special measures concerning the financial transparency of trade unions and employer organisations whose resources exceed ‘a threshold set by decree who must appoint an auditor’. The accounts must be certified and published, and secondment for trade union responsibilities must be clarified.

Working time

A fierce controversy has flared up about the second part of the law dealing with working time as it enables companies to renegotiate agreements, challenging the legal working time – namely, the 35-hour week – 10 years after the adoption of the so-called Aubry law.

The text maintains legal working time at 35 hours a week (1,607 hours a year) with a maximum of 48 working hours a week.

From now on, however, each company can negotiate the amount of overtime which has so far been set at sectoral level. Overtime agreed by individual employees beyond the current quota of 220 hours a year – the so-called ‘chosen overtime’ – will now have an upper limit of 405 hours and no longer requires authorisation from the labour inspectorate. Overtime will still be paid at a rate of 25% above normal pay with the following exceptions: managerial staff whose contract is based on certain objectives and employees working in certain economic sectors, such as hotels, restaurants and catering, who will only receive 10% for overtime.

Time off in lieu – at least 11 hours a day and 24 hours a week – is no longer mandatory for overtime exceeding the 220-hour annual quota. Companies will be able to draw up agreements on the organisation of working time determining thresholds that are negotiable and mandatory time off in lieu.

Moreover, the law stipulates that annualisation of working time – which allows varying weekly working time according to workload peaks – will become the norm. It will no longer be necessary to justify the reasons for using this type of working time organisation.

Beyond a fixed number of working days (forfait jours), the system of rest days under the reduction of working time scheme (réduction du temps de travail, RTT) is now applicable to so-called ‘autonomous workers’. However, employers will be able to individually ask these employees – including managerial and travelling staff – to give up rest days and work 235 days a year and even up to 282 days if the collective agreement permits.

Where a company-level or sectoral agreement governing the implementation of the 35-hour working week exists, it continues to apply. Thus, nothing will change for employees covered by such an agreement, unless the employer or employer organisation annuls it.

In other cases, it will be possible for a company-level agreement to redefine working time arrangements, such as seasonal variations in weekly working time, as well as the number of RTT rest days.

Reactions

‘At last we are coming out of the 35-hour week’ trumpeted Minister of Labour Xavier Bertrand when the law was adopted. He also announced a new law before the end of June 2009 on ways to ensure collective representation and to assess trade union representativeness in very small enterprises. Minister Bertrand also promised that ‘very soon’ he would extend by decree the 2001 Craftwork Employer Association (Union professionnelle artisanale, UPA) agreement introducing a contribution of 0.15% of the wage bill to finance social dialogue in these companies.

The two employer organisations, MEDEF and CGPME, are on the whole satisfied.

On the trade union side, CGT which protested at the end of June against the bill – along with CFDT, another signatory of the ‘common position’ – reiterated its rejection of the final version of the working time reform. CGT promised to ‘multiply initiatives to prevent its implementation’, including legal action against measures deemed contrary to international norms. The confederation considers the working time provisions of the law as ‘an unprecedented attack on maximum working time’.

The General Secretary of CGT’s Professional and Managerial Staff section (Union générale des ingénieurs, cadres et techniciens CGT, UGICT-CGT), Marie-José Kotlicki, launched a petition in mid-July which has already collected 4,000 signatures; she also wants to promote ‘progressive negotiations’ in companies, by imposing in particular a detailed account of working hours of employees on a contract with a fixed number of working days. In addition, Ms Kotlicki announced that CGT had decided to lodge a complaint with the Council of Europe since, with the working time reform, France does not respect the European Social Charter in this regard.

CFDT’s Professional and Managerial Staff’s section (CFDT Cadres) counts on strengthening its presence in enterprises in order to hold company-level renegotiations in check. CFDT considers that ‘if employees do not count their working hours, they count on their rest days to take a break and improve work-life balance’. The trade union thinks that companies will not ‘run the risk of opening Pandora’s box’ by imposing a greater number of fixed workdays.

Among those who did not sign the ‘common position’, CFE-CGC announced that it was going to take the matter to the European Court of Human Rights and call for a people’s referendum on the issue. It has also published an open letter to President Sarkozy in several daily newspapers, in which it expresses its disapproval of the law. CFTC, which – like CGT-FO – asked the signatories to withdraw from the ‘common position’, notes that ‘managerial staff can say goodbye to their RTT rest days’.

CGT-FO considers that this working time reform ‘is a serious attack on both employees’ health and their legitimate right to rest, as well as a blow to their work–life balance’.

Commentary

The conditions under which the so-called law on social democracy was drawn up and then adopted revealed much about the new French way of governing industrial relations. Social dialogue is complex in France (FR0807029I) and it is open to question whether the new rules of trade union representativeness will contribute to improving it. The law clearly sets out new rules for union representativeness, but it must be noted that it stipulates nothing about employer organisations which also hold pluralistic views.

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

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