France and EU in legal tussle over women's night work

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In April 1999, the European Commission proposed imposing an unprecedented financial penalty on France in order to force it to strike from the Labour Code provisions making it illegal for women employed in industry to work at night. The French government, while upholding the traditional French stance on this matter, has not ruled out the possibility of adapting legislation in this area during the current development of the second 35-hour working week law.

The European Commission considers that France, by maintaining its prohibition on night work for women in industry, is not upholding the 1976 EU Directive (76/207/EEC) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. On 21 April 1999, the Commission asked the European Court of Justice (ECJ) to impose a financial sanction on France to the tune of EUR 142,425 per day. This fine would remain in force for as long as France continued to ignore the Directive.

The history of the issue

In order to understand the whole problem, one must look back into history. France has prohibited women employed in industry from working at night - ie between 22.00 and 05.00 - since 1892, though this law applies neither to retail outlets nor to hygiene and welfare services. In 1948 the International Labour Organisation (ILO) passed Convention No. 89 concerning night work of women employed in industry, which prohibited such work by women. France ratified this convention in 1953. At this stage France could thus argue that it had complied with international conventions. Since then, various exemptions have been included in French law. Legislation dated 2 January 1979, in particular, introduced special dispensation for women in managerial or technical executive positions of responsibility, while legislation dated 19 June 1987 authorised a new system of exemptions. These applied where there are specific grounds and justification for the use of women's night work resulting from particularly serious circumstances, or in the case of work in successive shifts. In order to apply these exemptions, a company collective agreement was required and the sector concerned also had to have an agreement on the subject in place. Thus there was a gradual move from statutory prohibition to authorisation by agreement.

In June 1990, the ILO passed an additional protocol which amended Convention No. 89 and provided for exemptions - like those provided for under the French 1987 Act - as well as a new Convention No. 171 on night work. France has still to ratify the new Convention. On 25 July 1991, an ECJ ruling in the case of Criminal proceedings against Alfred Stoeckel (C345/89) condemned France, strongly criticising the ban on women's night work as being at odds with the 1976 equal treatment Directive. Due to the fact that Community law prevails, and French law does not comply in this area, the Stoeckel ruling effectively rendered the French regulation null and void. Thus, any individual may request that a French judge overturn the relevant Article (L.213-1) of the French Labour Code, which does not a comply with Community law. However, the 1976 Directive has never been reflected in the Labour Code despite the ECJ's ruling in March 1997 in the case of Commission v French Republic (C197/96) that France had failed its duty by not abrogating the relevant Article of the Code (FR9704140N). This explains the present recurrent problems.

A gaping statutory void

The state of French law in this area can best be described as a void. The 1892 French law prohibiting women from working at night in industry was greatly weakened by the exemptions made in 1979 and 1987. Moreover, while the law requires a sector-level agreement followed by a company-level agreement in order to implement women's night work in industry, nothing currently prevents an employer from introducing night work without agreement, simply on the basis of Community law. In fact, the statistics prove that this has happened. Of the 800,000 women who in 1997 regularly or occasionally worked nights, 46,700 were employed in industry, with the remainder spread through the health, social assistance and personal services sectors. Although at a national level there are no longer obstacles to women's night work and although France legally denounced ILO Convention No. 89 in 1992, France has still to ratify Convention No. 171. Therefore, the contrast between European regulations and French legislation is mainly academic.

The European Commission considered that France had not taken the measures necessary to comply with the March 1997 ECJ ruling in the Commission v French Republic case. It consequently sent the French authorities a letter of formal notice in January 1998, followed up by a "reasoned opinion" in July 1998. As the Commission believed that the French authorities had not given it any timetable for amending the relevant legislation in order to bring it into line with Community law, it decided in April 1999 to ask the ECJ to impose a fine. The basis for the Commission's action is Article 171 of the European Community Treaty (Article 227 since the Amsterdam Treaty came into force on 1 May 1999), which allows it to propose financial sanctions on any Member State which does not comply with ECJ rulings. It is now up to the ECJ to judge the matter and set the exact amount of any daily penalty. This procedure should take several months, thus allowing France to amend, if it so decides, its legislation.

France reacted to the Commission's announcement by stating that it had repudiated the ILO Convention prohibiting women from working at night and that the relevant provisions of the Labour Code, having been judged at odds with the equal treatment Directive, were no longer in force. Therefore, given that the French legislation has not really been applied since 1991, the breach of Community law is essentially academic. It should also be noted that France remains the only EU Member State to have maintained this type of discrimination in its labour law, with other countries - in particular Italy, Greece and Belgium (BE9805143F) - having brought themselves into line with the Directive.

Reaction

Evelyne Pichenot, the confederal secretary responsible for the international and EU relations department at the CFDT trade union confederation, stated that she was in favour of the challenge to the French legislation, which she believes to be discriminatory towards women. As a result, CFDT is advocating harmonisation of French law with European legislation, while at the same time respecting various elementary ground rules. Female night work must be limited and occur only on a voluntary basis. In addition, it must be accompanied by a reduction in working time and the promotion of career development among the women concerned, without threatening maternity and post-natal leave.

CGT-FO, while reiterating its commitment to the principle of equal opportunity in the workplace for both sexes, stresses the "intrinsic harmful effects of night work, which shortens a worker's life expectancy by seven years for every 20 years worked." In fact, CGT-FO wonders whether "real equality would not in fact lie in the across-the-board prohibition of night work for both men and women."

CFTC, for its part "regrets that the European Commission wishes, in the name of an ill-conceived principle of equality", to "impose night work on female workers in industry". It states that night work is very harmful to the health of both men and women.

Finally, the European Trade Union Confederation (ETUC) considers that if the equal treatment Directive must apply, the terms and conditions of the implementation of night work for men and women must be legislated for on a country-by-country basis.

Commentary

France remains cautious. Martine Aubry, the Minister for Employment and Solidarity, has asserted that "women's night work in France must not become the accepted norm" but that "no-one can prevent a woman from working at night ... However, employers cannot impose night work on women in industry. This is what we have been criticised for."

The drafting of the second 35-hour working week law, which is currently in preparation (FR9904173F), will perhaps enable France to adapt its legislation and to define financial or time off compensation for night work. (Christelle Meilland, IRES)

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