Debate over mandating employees to conclude collective agreements
The May 1998 legislation introducing the statutory 35-hour working week in France has given a new emphasis to the "mandating" procedure in collective bargaining. This mechanism, which allows a trade union to appoint an employee to negotiate and sign agreements in companies with no union delegates, aims to meet the concerns of both unions and employers, by compensating for the weak and dispersed union representation within companies. While the extent of company bargaining with these mandated employees is still limited, the new working time law may well provide a boost, all the more so as most unions have made mandating part of their campaign to cut working hours.
The most recent available statistics, from 1993, demonstrate a low level of trade union representation in smaller companies - there is a trade union delegate in only 34.9% of companies with 50-99 employees, and 54.3% of those with 100-199 employees. Similarly, workforce delegate s are present in only 29.6% of companies with 11-49 employees, and 59.8% of those with 50-99. Employers and trade unions, concerned with this issue, set up a new experimental procedure, called "mandating" (mandatement), during intersectoral negotiations on collective bargaining policy in 1995.
Thus, the intersectoral agreement of 31 October 1995 - signed by all union confederations except the CGT and the CGT-FO, which were opposed to the challenge posed to the union monopoly in this area - permits collective bargaining in companies with more than 10 employees with no union delegate or workforce delegate acting as a union delegate. Sector-level agreements can authorise collective agreements in this type of company to be concluded either by employees mandated to do this by a trade union, or by elected staff representatives, on condition that company agreements thus signed are validated by a sector-level joint union-employer committee.
The law of 30 November 1996 followed the intersectoral agreement faithfully and adopted its content on an experimental basis, thus leaving unions with substantial prerogatives in the implementation of these new procedures: only sector-level collective agreements can establish the mandating mechanism; while the implementation of such a sectoral agreement can be opposed by the majority of the non-signatory representative unions in a given sector. Apart from mandating, the possibility of reaching collective agreements with elected staff delegates, whether or not these are members of a union, is now open. Thus, a legal framework has been given to the practice of reaching informal agreements, known as "quasi-agreements" or "atypical" agreements, without unions being involved, most frequently with non-union works council s.
A slow start to mandated negotiations
The earliest partial assessments indicate that these innovative mechanisms have mostly been used in the context of agreements on the reorganisation and reduction of working time with financial incentives for taking on new staff, based on the 1996 "Robien law" (FR9705146F). In 1996 and 1997, 17 sector-level agreements on mandating were signed, all in agriculture and those parts of the service sector in which small and medium-sized businesses are preponderant. Seven of these agreements mention the Robien law explicitly, and encourage the implementation of its provisions. Some of these 17 sector-level agreements provide for procedures for the mandated employee to keep employees informed during negotiations, or require minimal seniority conditions to be met by any candidate for mandating. Nine of the agreements also provide facilities for mandated employees during negotiations (mainly in the form of paid time off).
The Ministry for Employment and Solidarity's assessment of collective bargaining in 1997 counted more than 600 company agreements signed by mandated employees in that year (FR9807122F). The CFDT and CFTC trade union confederations were responsible for the majority of this mandating, with 59% and 23% of the agreements signed respectively. The other unions trailed far behind, with 7% for CGT-FO, despite its opposition to the measure, 5% for CFE-CGC and 4% for CGT. Working time and employment are almost the only topics dealt with in these agreements. Bargaining activity in small businesses has remained limited because there are so few sector-level agreements on mandating, and also, on the part of employers, a marked reluctance to see the mandating procedure used.
The legislation introducing the 35-hour working week, adopted on 19 May 1998, could relaunch mandating, as it makes the scheme permanent and considerably opens up mandating possibilities (FR9806113F). Mandating, limited in this case to signing agreements on the reduction of working hours, has become possible in all companies with no union delegate or workforce delegate nominated as union delegate, whatever the size of the workforce. A sector-level agreement is no longer necessary. Mandated employees enjoy protection against dismissal similar to that which covers union delegates. The conditions of the mandate granted by a union are however, more precise. The employee has to report to the union that mandated him or her and to the employees in the company. Moreover, those employees who, due to the power they hold, have a status similar to that of the head of the company, or those who are members of his or her family, cannot be mandated.
Mandating, a new tool for unionisation
Since the signing of the 1995 agreement, the CFDT has often been the most determined of the unions to initiate sector-level negotiations on mandating. Now, the other unions, apart from the CGT-FO, are taking into consideration the content of the 35-hour week legislation and planning to use mandating to obtain working time reductions in small and medium-sized businesses. Mandating also provides an opportunity for unionisation. The CFDT, the CGC, the CGT and the CGT-FO require that an employee who wants to be a candidate for mandating must already be a member of the union, although the CFTC does not apply this rule. Beyond that, the ways in which mandating is implemented and followed up vary quite considerably.
The CFE-CGC has set out precise internal regulations in a "mandating charter" and has organised individual follow-up procedures for the mandated employee. The CFDT has not drawn up a mandating procedure, preferring to leave its local or sectoral organisations free in this regard. Even the principle of prior membership for mandated employees is not automatically applied in some individual cases. However, this union's structures are the most attentive to welcoming and following up new mandated employees through local networks. Contact is made mostly by telephone, though a degree of collective follow-up has been accomplished. CFDT organisations often note that the mandated employee, once involved in the local networks, quickly brings new members into the union from the workplace.
Although it did not sign the 1995 agreement, the CGT now has an active attitude towards mandating, which was presented at its last national confederal committee meeting in May 1998, as a new field of activity for trade unionism and a potential "space" for unionisation. This change of view is linked to an analysis of what is at stake in the reduction of working time and, for CGT, mandating must stay within this context. A training module on this subject has been created at confederal level. In some départements, "tutors" follow up the mandated employees.
The CGT-FO is the only union to remain resolutely opposed to mandating, which in this organisation's eyes, does not seem to ensure the independence of the employees vis-à-vis the employer. When faced with a request for mandating, the union's advice is to ask for a general assembly to be organised at the company concerned to check whether the mandated employee indeed represents his or her workmates.
With regard to the impact that mandating may have on collective bargaining in France, two issues arise. The first concerns unionisation and has already been clearly identified by unions: how to turn an employee with no union experience into an activist.
The other issue has more to do with the system of collective bargaining, as the mandating procedure has shaken one of this system's pillars: the representative status granted by the state to the large trade union organisations, which makes these unions the exclusive participants in private sector bargaining. Mediation through unions gives employees a guarantee that, where commitments are made in their name, this is done by parties with the requisite negotiating expertise, motivated by the collective interest, and above all independent of employers' power. This guarantee is absent from mandating, even if, as has been observed, unions are attempting to rectify this by use of internal procedures. The biggest problem with mandating is that it does not overcome one of the main drawbacks of the assumption of representative authority, which is that it ducks the issue of the threshold of support required to be able to commit a group of employees to some course of action. An analysis of the agreements signed by mandated employees so far shows that mandating almost always excludes "multi-union representation", although again, unions, especially the CGT-FO, have set up practical regulations aimed at ensuring that the mandated employee really is representative. (Catherine Vincent, IRES)
References: "Négocier dans les entreprises dépourvues de délégués syndicaux. La signature d'accords par es salariés mandatés au sein des TPE/PME", Sophie Gaudeul, Rapport d'étude pour l'Observatoire des relations professionnelles et de l'innovation sociale, CFDT, Paris (1998); "La politique contractuelle fonde-t-elle les relations sociales?", Catherine Vincent, in "L'état de la France 1998-9", Ed La Découverte et Syros, Paris (1998).