France: Social partners give mixed response to Macron Law on labour disputes
Reforms to the law on labour disputes have been criticised by the social partners as rushed, and as an attempt to destabilise the joint nature of the Labour Court. The changes have been included in the Macron Law, adopted on 9 June 2015 by parliament, which also includes several measures to stimulate the French economy.
The Macron law, heralded as an initiative aimed at promoting growth and economic activity, comprises a range of measures, including some on employment (in French). However, the bill has been criticised by the social partners for being premature. Unions in particular have claimed that the reforms were not urgent and more time should have been allowed for consultation. One measure, for example, allows greater scope for shops to open on Sundays.
Prior to these reforms, employment disputes were initially brought before a bipartite adjudication panel of lay judges (advisors), elected by employers and employees. Its decisions could be appealed to professional judges. If advisers on the panel disagreed, a professional ‘départiteur’ judge, in consultation with four advisors (two employers, two employees), were asked to rule on the issue.
The reform of the Labour Courts was prompted by the Lacabarats Report, which was sent to the Minister of Justice in July 2014. This report found that:
... the Labour Court, in its current organisational structure, does not operate in a manner consistent with the requirements of European standards and has serious deficiencies.
The draft reform to the courts was announced on 15 October and presented officially to the Council of Ministers on 10 December 2014 as part of the 'Macron' Law (named after the Minister of Economy Emmanuel Macron).
According to the report's findings, the errors in the way these courts were run cost the state €448,500 in compensation in 2012 and €1,402,250 in 2013. Their proceedings were also criticised for being excessively long: it took an average of 15.1 months to reach a judgement in 2013, while some plaintiffs had to wait between 16 and 18 months. Furthermore, some cases lasted 29 months if the advisors could not reach a consensus and had to apply to the ‘departiteur’ judge.
In 2013, the Marshall Report had already advocated the creation of a unique panel (in French, 2.6 MB PDF) to deal with all court disputes relating to labour and claims concerning social security and social benefits.
Outline of new measures
The new law contains measures to speed up procedures. Once a complaint is lodged with the Labour Court, the dispute passes to a Conciliation Board, comprising two advisors, one employee and one employer. The board is expected to ensure that the parties reach an agreement without going before the adjudication panel. While this is a laudable intention, statistics show that this kind of step hardly ever allows for conciliation. However, the board does carry out a function of guidance and of pre-trial hearing to verify that all relevant evidence has been gathered.
Three separate panels
If the parties do not reach conciliation, the board can ask one of three bodies to resolve the situation. These adjudication panels comprise:
- two joint judges (this option is reserved for cases of dismissal or legal termination and requires the agreement of the parties);
- four judges, as in the panel’s present form;
- a panel chaired by a professional judge (which can be requested by the parties).
Training and code of conduct
Successive reports have demonstrated the low quality of judgments pronounced by the Labour court (70% of the judgments of the Labour court are either partially or completely cancelled on appeal). The law now stipulates an initial training for advisors and a professional training requirement. Advisors may ask their employer for five days of absence to attend initial training and a total of six weeks for training during their four-year term in office. The bill also sets out a code of conduct for advisors, and provides for a national disciplinary committee to punish any violations.
Status of union defender
Employees can defend themselves at the Labour Court, or they can be represented by a lawyer. A third option is to be represented by an employee appointed by a union and the new bill refers to this person as the ‘union defender’, a status with specific tasks, and gives them enhanced protection. A union defender can now be dismissed only with the approval of the labour inspectorate.
Schedule for severance pay
After suggestions made in parliamentary debates, the government has added a compensation scheme to the new law which can be used at the discretion of the judges in cases of unjustified dismissal. Compensation is to be calculated on the basis of seniority, age and the applicant's job status.
New process for appointing advisors
The government has also launched a consultation process with the social partners to modify the way the Labour Court's advisors are elected. Up to now, they have been elected from lists submitted by employers or trade unions in a national ballot. The proposal is that they will now be appointed by employers’ organisations and trade unions according to their performance in professional elections, which since the 2008 representativeness reforms take place every four years.
Reactions of social partners
In November 2014, all the social partners in the Supreme Council rejected the first draft of the reform because they felt the importance given to the professional judge would undermine the independence of employee and employer advisors. Some unions, including the the General Confederation of Labour (CGT), Force Ouvrière (FO), and the French Confederation of Management – General Confederation of Executives (CFE-CGC), also protested that reforms had been introduced as part of legislation on the economy. This had made debate difficult, since the law contains other measures that they oppose, such as the relaxation of the ban on Sunday work. However, unions have welcomed the strengthening of the employee defender’s role and the new training obligation. The French Democratic Confederation of Labour (CFDT) also supports the provisions on ethics and discipline (in French).
The government, by introducing the Macron law, has decided against a systemic reform of the Labour Court. The new legislation does not challenge its main feature, the central role of lay judges. But while enhancing and strengthening the role of advisors to ensure their impartiality and independence, the law also increases the role of professional judges, a goal which has been widely criticised by the social partners. Crucially, nothing has been revealed about the personnel and investment in new technology needed to implement these reforms.