Second 35-hour week bill reopens debate on unions' representative status

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By making state funding for working time reductions contingent upon a company agreement signed by majority trade unions or approval by a majority of the employees, France's draft bill for a second law on the 35-hour week - issued in summer 1999 - has brought the issue of unions' representative status to the fore. Unions are split over the law's provisions on this issue.

In July 1999, the French government published its proposals for a second law on the 35-hour working week (FR9906190F). The first "Aubry law", adopted in June 1998 (FR9806113F) provides for the introduction of a statutory 35-hour week from January 2000 (2002 for smaller companies) and encourages the social partners to negotiate on this issue at company and sector level before late 1999. The second law will then lay down more detailed legal provisions on the new working time regime. The bill for the second law provides for a reduction in employers' social security contributions to accompany the switch to the 35-hour week, which is conditional on the reduction in working time having been negotiated at company level, and on it being subject to a at least a minimum degree of consensus among trade unions. This last point has thus reopened the debate on the criteria for bestowing representative status on unions in France. This renewed debate got underway in July 1998 when the CGT union confederation, on the day after an agreement on the 35-hour week had been signed in the metalworking industry by unions (CGT-FO, CFE-CGC and CFTC) it felt were representative of only a minority of employees (FR9808129F), requested that the criteria for the granting of representative union status be reviewed.

The French system of representative status for unions

The French system of industrial relations is based on trade union "pluralism", with the representative status of trade union organisations determined according to the following criteria: number of members; independence from employers, level of membership contributions; experience and length of existence; and how patriotic the union's attitude was in the fight against Nazism in World War II. The individual unions affiliated to the five most "representative" union confederations - CFDT, CFE-CGC, CFTC, CGT and CGT-FO- are exempt from having to prove their representativeness at sector and company level. These union organisations recognised as being nationally representative thus enjoy an indisputable presumption of representativeness at all levels, which enables them to: participate in major social institutions; negotiate sector-level or company agreements; organise workplace representative elections where their candidates enjoy a monopoly of candidates in the first round of voting; and appoint union delegates in companies. The other union organisations, referred to as "independent" (autonomes), have to prove their representativeness within each sector and company.

In the area of collective bargaining, the "single signature" rule prevails. This allows just one union which is recognised as representative to commit all the employees of a company or sector to an agreement. In 1982, to limit the negative effects of collective agreements being signed by representative but minority unions, the majority representative unions which have not signed such an agreement were granted the statutory right to oppose legally its implementation. This "right of opposition", which introduces the notion of degrees of representativeness, is provided for in only a limited number of cases. To earn this right, the non-signatory unions must have received over 50% of the votes of those registered to vote in the most recent works council elections, or failing this, the latest elections for workforce delegates. This is a high proportion, since 50% of those registered often means 70%-80% of those who actually vote.

The draft bill's contents

The draft second bill on the 35-hour week seeks to promote a further spread of the boom in collective bargaining engendered by the first law (FR9906190F). Thus it makes many of its provisions contingent upon a company agreement being reached, and also strives to establish the legitimacy of these agreements. The bill makes entitlement to the new reductions in employers' social security contributions subject to the conclusion of a "majority" collective agreement - ie one signed by unions which have representative status in the company and which received a majority of the vote in the most recent workplace elections. If the agreement is signed by minority unions, it must be ratified by a referendum in order that the company can be eligible for the state subsidies. However, the initiative of consulting the staff over such an agreement is reserved exclusively for the signatory unions, which paradoxically boils down to granting them control of whether or not the company receives funding.

The draft bill does not tackle the issue of the criteria for determining representative status. On the contrary, it states that these will remain unaltered. However, it does change the rules for collective bargaining, but only regarding the granting of state funding. It does not deal at all with the general validity of agreements.

The terms of the inter-union debate

The measure planned in the new law has triggered an open debate among the unions. CGT stated that these new rules were a limited step forward worthy of support. The confederation's objective is to have a statutory measure which ensures that at every level, from the sector down to the company, the agreements reached reflect the will of the majority of the employees. At sector level, the way to measure the unions' support could be the elections for seats on elected industrial tribunal s (conseils de prud'hommes- FR9710171F), and at company level, it could be the workforce elections (to works councils etc). For its part, CFDT also acknowledges that the criteria for representative status must be looked at again, as some of them seem outdated. However, this confederation criticised the government's method: dealing with an important subject with no prior consultation with the actors concerned, and by means of a law which is not designed to tackle that particular question. CFDT recently suggested that the method for measuring union support at company level could be extended to sector level.

The three other representative union confederations have launched a scathing attack on the plan. CGT-FO detected a willingness to pursue an "Anglo-Saxon logic". This refers in to the regulations on representative status in the USA, where a union's presence in a workplace is conditional on proving that it represents 50% of the staff. As far as CGT-FO is concerned, the representative status of unions is a real problem, but one that should be solved by the labour movement rather than the state. CFTC, along with CFE-CGC, interprets the fact that the privilege of signing agreements is being granted to majority unions only as a threat to union pluralism. These confederations are lobbying for the right of opposition to be redefined, and are firmly opposed to any challenge to the five nationally representative confederations' indisputable presumption of representativeness.

The debate is not restricted to these five representative union confederations. The independent unions, which have increased their memberships over the past few years, view the bill as an initial step towards the recognition of their significance in terms of size and power. The National Confederation of Independent Unions (Union nationale des syndicats autonomes, UNSA) has suggested giving the representative status system a comprehensive overhaul, and starting from scratch with new criteria, on the basis that the representative status of the various unions be subject to regular checks in the future.

Employers are far from keen for the use of workforce referenda to be extended, as they are seen as a challenge to employers' decision-making power.

Commentary

The authors of the draft bill have remained circumspect, not challenging the current criteria for representative status. The bill confines itself to introducing the option of holding workforce referenda. In the workplace, the use of these is already widespread, certainly for giving unions' decisions the legitimacy they lack: more or less formal consultations are regularly organised by the unions before negotiating with an employer, and prior to returning to work after a strike (FR9906193N).

The fact that a union does not have to prove the extent of its representativeness is a distinctively French characteristic. The presumption of representativeness was aimed at facilitating the establishment of a union presence in companies, which would thus not be left to the will of the employer or the existence of power relations of a type which are often lacking in French companies. The system's effects are most negative in terms of collective bargaining. By granting all the unions the same prerogatives, the principles governing the signing of agreements become structural sources of division: a "representative" union, even if it is a minority one, may validly commit the entire workforce to an agreement. Additionally, a union's refusal to sign is relatively inconsequential, as the contents of the agreement apply to all employees anyway. The revision of the rules for collective bargaining can be efficiently carried out only by the unions themselves. (Catherine Vincent, IRES)

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