Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - France (Ratification: 1951)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the General Confederation of Labour (CGT), received on 29 August 2023, and the Government’s replies in this regard. The Committee notes that the CGT’s observations contain in particular allegations of: (i) restrictions on the exercise of collective rights, including collective bargaining during the COVID-19 pandemic; and (ii) acts of anti-union discrimination in the public and private sectors in a general context, according to the CGT, of increasing restrictions on trade union rights. The Committee also notes in relation to this latter point the general information contained in the observations of the French Confederation of Management – General Confederation of Professional and Managerial Employees (CFE-CGC), provided in relation to the application of the Workers’ Representatives Convention, 1971 (No. 135), and the Government’s corresponding replies. The Committee takes due note of the detailed replies by the Government on the measures adopted to facilitate collective bargaining and workers’ representation activities in the specific context of the pandemic. The Committee also notes the Government’s views concerning protection mechanisms against anti-union discrimination and the replies provided in relation to certain specific allegations. In light of the allegations of a general nature by the representative organizations in relation to anti-union discrimination, the Committee requests the Government to engage in dialogue with representative social partners on the effectiveness of measures to prevent and punish acts of anti-union discrimination. The Committee requests the Government to provide information in this regard.

Follow-up to the recommendations of a tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that in March 2023, the Governing Body approved the report of a tripartite committee appointed to examine a representation made by the General Confederation of Labour – Force Ouvrière (CGT-FO) and the CGT under article 24 of the ILO Constitution (GB.347/INS/18/3) concerning the application by France of Conventions Nos 87 and 98 and certain limited aspects of the reforms adopted in 2016 and 2017 in relation to social dialogue and collective bargaining. The Committee notes that the tripartite committee requested the Committee of Experts to follow-up its recommendations, particularly in relation to the application of Article 4 of this Convention. The Committee notes that the tripartite committee requested the Government to: (i) engage with the social partners to ensure that the legislation on the relationship between the different bargaining levels is implemented in a manner that ensures the principle of free and voluntary collective bargaining; (ii) review and assess with the social partners concerned the application of the provisions granting the employer the option of holding a consultation with employees with a view to approving an enterprise agreement that would not have received the support of the majority trade unions in the enterprise and for which the signatory unions have not put the matter to a workplace referendum; and (iii) provide information on the implementation of the reforms and their effects on collective bargaining in practice. While noting the Government’s indications concerning the rulings of the Council of State of 7 October 2021, which are examined below in the present comment, the Committee requests the Government to: (i) provide information on the dialogue with the social partners called for by the tripartite committee concerning, on the one hand, the implementation of the reform with regard to the relationship between bargaining levels and, on the other, the consultation of employees at the initiative of the employer for the purposes of the adoption of an enterprise agreement; and (ii) continue to provide information on the implementation and effects of the 2016 and 2017 reforms in relation to collective bargaining.

Articles 1 and 4 of the Convention. Protection against anti-union discrimination and promotion of collective bargaining for platform workers considered to be self-employed workers. The Committee recalls that, after noting the initiatives taken by the Government in this regard, it requested it to provide information on the adoption of any text concerning the exercise of the rights recognized by the Convention by platform workers, irrespective of their contractual status. The Committee notes the Government’s indication that: (i) Ordinance No. 2021-484 of 21 April 2021 on the procedures for the representation of self-employed workers using platforms for their work and on the conditions for exercising this representation, approved by Act No. 2022-139 of 7 February 2022, has organized the representation of platform workers on the principle of a national election under the auspices of a new public establishment, the Authority for Industrial Relations of Employment Platforms (ARPE); (ii) provisions for the protection of workers’ representatives apply during their mandate and for a period of six months following the end of their mandate: the termination by the platform of the commercial contract concluded with a workers’ representative during this protection period is subject to prior administrative authorization and representatives who consider that they have suffered a decline in their activity due to the platform can appeal to the courts, with the burden of proof being reversed in such a case; (iii) the first election of the organizations representing platform workers was held in May 2022; (iv) Ordinance No. 2022-492 of 6 April 2022 organizes social dialogue and collective bargaining at the sectoral level for the sectors of passenger vehicles with drivers and the delivery of goods using two- or three-wheel vehicles; (v) to be valid, a sectoral collective agreement must be signed by at least one platform organization and by workers’ organizations representing over 30 per cent of the votes cast during the elections and must not have been opposed by workers’ organizations representing 50 per cent of the votes cast; (vi) the agreement that is concluded applies to platforms affiliated to the signatory organizations and their workers in the sectors concerned; it is compulsory for commercial contracts binding the platforms and workers in the sector concerned, unless there are more favourable provisions in commercial contracts; and (vii) the Ordinance sets out the obligation to engage in bargaining every year at the sectoral level on certain subjects. The Committee notes with satisfaction the adoption of the instruments referred to above recognizing and organizing the collective rights of self-employed platform workers and, in two specific sectors, establishing a complete framework to facilitate the exercise of the right to collective bargaining of the self-employed workers concerned. In this regard, the Committee notes with interest the conclusion in 2023 of several collective agreements in the two sectors referred to above relating, among other areas, to the remuneration of self-employed workers and the conditions governing the termination of their contractual relationship with the platform. The Committee encourages the Government to continue its efforts so that all platform workers, irrespective of their type of activity and their contractual status, are able to exercise effectively the rights recognized by the Convention. The Committee requests the Government to continue providing information on this subject.

Article 4. Collective bargaining with non-unionized workers in small enterprises. The Committee recalls that, on the basis of successive observations by the CGT-FO, the CFE-CGC and the French Democratic Confederation of Labour (CFDT), it examined the possibilities for the conclusion of agreements with non-unionized workers opened up by the 2017 Ordinance.

On the basis of the information provided by the Government, the Committee recalls that it noted the existence of three main methods of concluding collective agreements in small enterprises, each subject to specific rules and conditions: (i) the conclusion of an agreement with one or more trade union delegates or one or more employees mandated by a trade union (the latter may also be elected staff representatives); (ii) in the absence of a trade union delegate, the conclusion of an agreement with one or more elected staff representatives not mandated by a trade union; and (iii) the approval under certain conditions in enterprises with up to 20 employees of an employers’ proposal by a direct vote of the employees in the enterprise by a two-thirds majority. The Committee observed that the first method is in line with Article 4 of the Convention, under the terms of which collective bargaining takes place between employers and employers’ organizations, on the one hand, and workers’ organizations, on the other. With regard to the second method, the Committee recalled that direct negotiation with elected staff representatives should only be possible in the absence of trade unions at the relevant level. In relation to the third method, the Committee considered that the adoption of an employer’s proposal by a direct vote of the employees does not have the characteristics of a collective bargaining mechanism within the meaning of the Convention. On the basis of the above, the Committee requested the Government to: (i) clarify whether, in a small enterprise where there is an employee mandated by a representative trade union for the purposes of collective bargaining, the employer may freely choose another method of concluding a collective agreement; (ii) continue to provide statistics on the use of the different methods for the conclusion of collective agreements in small enterprises; and (iii) continue to provide information on the measures to promote collective bargaining between the employer and workers’ organizations in small enterprises.

With reference to the choice by the employer of the method for the conclusion of an agreement, the Committee notes the Government’s indication that: (i) in enterprises with fewer than 50 employees and in the absence of a trade union delegate, the Labour Code permits the employer to choose negotiation either with an employee mandated by a trade union, or with an elected employee, whether or not the latter is mandated; (ii) in enterprises with between 11 and 20 employees, in the absence of an elected member of the staff delegation on the social and economic committee (CSE), the employer may opt to negotiate with an employee mandated by a trade union or to consult the employees directly.

The Committee notes the information provided by the Government on the different types of agreements concluded in small enterprises in 2021: (i) for enterprises with fewer than 50 employees as a whole, 24.8 per cent of agreements or addenda, except those covering salary savings schemes, were concluded by trade union delegates (19 per cent in 2020), 14.1 per cent by elected representatives and employees mandated by trade unions (17.7 per cent in 2020); 20.2 per cent by elected representatives not mandated by trade unions (20.7 per cent in 2020) and 40.2 per cent by votes by employees with a two-thirds majority (41 per cent in 2020); and (ii) 40.2 per cent of agreements, except those covering salary savings schemes, were concluded by votes by employees with a two-thirds majority in enterprises with between 11 and 20 employees (72.9 per cent in 2020) and 82.6 per cent in enterprises with fewer than 11 employees (89 per cent in 2020). The Committee notes the Government’s indication that the development of recourse to alternative methods for the conclusion of agreements in small enterprises is not replacing negotiation with representatives of trade unions, as the proportion of agreements signed with trade union delegates rose in 2021 and their presence in enterprises with between 10 and 49 employees rose from 3.6 per cent in 2014 to 4.5 per cent in 2021.

The Committee notes the Government’s further indication that: (i) the employee mandated by the union is not empowered to represent the union in the enterprise on a permanent basis, but only for a specific negotiation; (ii) only trade unions can present candidates to stand in the first round of elections to the CSE and 54 per cent of the employees elected from the personnel in enterprises with fewer than 50 employees are unionized; (iii) the method of the trade union mandating an employee is very rarely used; and (iv) the conclusion of agreements by a vote by the personnel with a two-thirds majority does not consist of the mere approval of an employer’s decision, but gives rise to dialogue between employees and the employer.

The Committee notes that the Government also recalls that: (i) in order to avoid all small enterprises from being structurally excluded from the possibilities offered by enterprise agreements, methods of negotiation are offered that are adapted to their specific characteristics, including those of enterprises without any trade union actors (mandated employees or elected staff representatives who are unionized or mandated), which has resulted in a significant increase in the agreements concluded in this type of enterprise; and (ii) the organization of an election every four years has been provided for since 2012 with a view to measuring the support for trade unions in enterprises with fewer than 11 employees.

The Committee takes due note of these various elements. While recalling that Article 4 of the Convention sets out the obligation to promote collective bargaining with workers’ organizations, the Committee is also aware of the specific context of collective bargaining in small and very small enterprises, particularly due to the weak presence of trade unions. The Committee recognizes in this respect the efforts made by the Government to enable the conclusion of agreements in small enterprises and the existence of specific mechanisms (particularly, the mandating of employees) so that these agreements are concluded with trade union actors. However, the Committee emphasizes the need for workers and their organizations to be able to set this type of measure in motion independently. In this regard, the power attributed to the employer to be able to set aside negotiations with an employee who has been mandated by a representative trade union in favour of other methods of concluding agreements without the involvement of trade union actors does not appear to be in conformity with the Convention insofar as: (i) it does not promote collective negotiation with workers’ organizations, as provided in Article 4 of the Convention; and (ii) by virtue of the principles of non-interference and free and voluntary collective negotiation, as established in Articles 2 and 4 of the Convention, respectively, it is for the workers, and not the employer, to choose their representatives for the purposes of negotiation. On the basis of the foregoing, the Committee requests the Government, in consultation with representative social partners, to take the necessary measures to: (i) ensure that the methods for the conclusion of collective agreements not involving the participation of trade unions are only possible in the absence of trade union actors capable of negotiating collectively in the specific enterprise; and (ii) ensure that in the event of a plurality of options for the representation of workers in collective bargaining, the choice does not lie with the employer. The Committee requests the Government to provide information on the measures adopted in this regard.

Possibility of derogating through agreements concluded by non-union actors from the protective clauses contained in higher-level agreements concluded by trade unions. The Committee recalls that it previously noted that, following the reforms introduced by the 2017 Ordinance, enterprise agreements not signed by a trade union, in particular in enterprises with fewer than 50 employees, including those resulting from an employer’s proposal submitted to a vote by the employees, are able to set aside, in relation to a significant number of subjects open to collective bargaining, clauses that are more favourable to employees contained in the branch agreements negotiated and signed by representative trade unions. The Committee emphasized that this option is not consistent with the obligation to promote collective bargaining set out in Article 4 of the Convention and therefore requested the Government to provide information on the occurrence in practice of this possibility of derogation and to take the necessary measures to review the power of derogation from higher-level agreements available through agreements signed by non-union actors.

The Committee notes the reference by the Government to the rulings of the Council of State of 7 October 2021 providing that the minimum level of overall remuneration set by a branch agreement is compulsory for the enterprise, and the margin for manoeuvre left for the enterprise agreement only covers the manner in which this minimum level is attained. The Committee understands that this information is intended to indicate the limits upon the possibilities for derogation accorded to enterprise agreements by the 2017 Ordinance.

While recalling that under the 2017 Ordinance, with the exception of a number of subjects specifically defined in law, the content of enterprise agreements henceforth prevails over that of higher level agreements (section L.2253-3 of the Labour Code), the Committee observes that the Government has not provided information on the specific point raised in its previous comments, namely the possibility accorded to agreements signed by non-union actors to derogate from higher-level agreements concluded by the social partners. Emphasizing once again that this possibility is not in conformity with the obligation to promote collective negotiation with workers’ organizations as set out in Article 4 of the Convention, the Committee requests the Government, in consultation with representative social partners, to take the necessary measures to review the possibility accorded to enterprise agreements concluded by non-union actors to derogate from protective provisions in higher-level agreements concluded by the social partners. The Committee requests the Government to provide information on the progress achieved in this respect.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the French Democratic Confederation of Labour (CFDT) and the Management Confederation of France-General Confederation of Managers (CFE-CGC) received on 6 and 8 September 2021 respectively, which relate to the issues examined in the present direct request. The Committee also notes the Government’s comments thereon.

Collective bargaining and the COVID-19 pandemic. The Committee notes the Government’s information on the measures taken in 2020 to support the continuation of collective bargaining during the health crisis and to enable the social partners to deal with the urgent situations created by the COVID-19 pandemic. The Committee notes in this respect that: (i) an exceptional mechanism for shortening certain deadlines for the conclusion and extension of collective agreements relating to the consequences of the health crisis was put in place; and (ii) this mechanism was applicable only to company and branch agreements whose exclusive purpose was to deal with the social, economic and financial consequences of the pandemic and it ceased to apply on 10 October 2020.

Article 4. Promotion of collective bargaining in small enterprises. In its previous comment, the Committee had noted the observations of the General Confederation of Labour Force Ouvrière (CGT–FO) and CFE–CGC denouncing that the reforms of the collective bargaining and social dialogue mechanisms adopted on 22 September 2017 had significantly extended the possibility of concluding collective agreements without the participation of trade union organizations, particularly in small enterprises. On the basis of these observations and the corresponding Government responses, and having recalled that negotiation with non-union actors should only be possible in the absence of trade union organizations at the relevant level, the Committee had requested the Government to: (i) specify the modalities enabling workers in enterprises with fewer than 11 employees and in enterprises with between 11 and 20 employees without elected staff representatives to negotiate collectively their working conditions through trade union organizations, if they so wished; and (ii) indicate the action taken to promote collective bargaining within the meaning of the Convention in small enterprises.

The Committee notes in this respect the Government’s indications that: (i) in enterprises with 11 to 20 employees, it is always possible, in the absence of an elected staff representative, to negotiate an agreement with one or more employees expressly mandated by one or more representative trade union organizations (Article L. 2232-23-1 of the Labour Code); (ii) even if the appointment of a trade union delegate (who, under French law, has the capacity to negotiate and conclude a collective agreement as long as his or her organization is sufficiently representative) is only expressly envisaged by the Labour Code for enterprises with at least 50 employees, the branches may set the number of employees in enterprises from which trade union delegates may be appointed. They can therefore provide for the possibility of appointing a trade union delegate in companies with fewer than 50 and even fewer than 20 employees if they consider it appropriate in the light of the trade union context in the branch; and (iii) a trade union organization can also negotiate in all small companies through the representative of the trade union section. Trade union organizations can in fact set up trade union sections in small companies under the conditions set out in Article L. 2142-1 of the Labour Code. Article L. 2143-23 of the Labour Code authorizes the representative of the trade union section to negotiate, in the absence of a trade union delegate in the company or establishment, company or establishment agreements if he or she is mandated by his or her trade union organization.

The Committee notes that the Government then provides information on the use in 2020 of the various methods of concluding collective agreements in small enterprises (apart from those agreements concluded specifically on employee savings). In this respect, the Government states that: (i) in companies with fewer than 50 employees in general, 19 per cent of the agreements concluded were signed by trade union delegates, 17.7 per cent were signed by elected staff representatives and employees mandated by a trade union organization, 20.7 per cent by elected staff representatives not mandated by a trade union organization, while 41 per cent were directly adopted by staff vote by a 2/3 majority; (ii) focusing the scope to companies with less than 21 employees, 72.9 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority; and (iii) further focusing the scope to companies with less than 11 employees, 89 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority.

The Committee also notes the additional information provided by the Government concerning: (i) the organization every four years of an election to measure the audience of trade union organizations in enterprises with fewer than 11 employees, in accordance with Article L. 2122-10-1 of the Labour Code, which, according to the Government, is likely to encourage the establishment of trade union organizations within these companies; and (ii) the existence of departmental observatories for analysis and support for social dialogue and negotiation, in which the trade union organizations are involved and which aim to encourage and promote collective bargaining in companies with fewer than 50 employees.

The Committee further notes the observations of the CFDT and the CGC-CFE. The Committee first notes that the CFDT wishes to nuance the Government’s assertion on the possibilities of trade union establishment in small enterprises insofar as other provisions of the Labour Code would, on the contrary, aim to prevent this. The Committee notes that the CFDT states in this respect that: (i) since 2017, trade union organizations are no longer automatically informed of the organization of elections for staff representatives in enterprises with 11 to 20 employees, which clearly limits their possibility of establishing themselves in these companies; (ii) even if the mandating by a trade union organization of an employee for the purposes of collective bargaining remains possible in enterprises with fewer than 50 employees without a trade union delegate, the employer now has the option of choosing other modalities for concluding collective agreements with non-union actors (negotiation with elected staff representatives when they exist ; in the absence of elected staff representatives in companies with up to 20 employees, submission by the employer of a proposal to a vote of the employees); and (iii) the employer does not inform the trade union organizations of its intention to negotiate a collective agreement in the company, which makes it very difficult to take initiatives to mandate employees for the purpose of collective bargaining.

The Committee also notes the position expressed by the CGC-CFE, which in turn criticizes agreements concluded by direct employee approval of a proposal made by the employer in companies with up to 20 employees. The trade union organization states that this mechanism does not give rise to genuine collective bargaining and that the conditions for a balanced debate between the employer and his employees are not met. The Committee notes in this respect the Government’s comments that: (i) the system of mandating employees of small enterprises by trade union organizations for the purpose of collective bargaining was very rarely used before the 2017 reform, which left many small enterprises without the possibility of negotiating and concluding collective agreements; (ii) collective bargaining in small and very small enterprises is generally of an informal nature; (iii) a qualified majority of employees is required for the approval of the agreement proposed by the employer envisaged by Articles L. 2232-21 to L. 2232-23 of the Labour Code; and (iv) under the same provisions, employees have a period of 15 days to express their opinion on the employer’s proposal and have the possibility to seek advice from the departmental observatory for analysis and support of social dialogue and negotiation.

The Committee takes note of these different elements. It first notes the information provided by the Government on the possibilities of collective bargaining through trade union organizations in small enterprises, including enterprises with fewer than 20 and fewer than 11 workers. The Committee also notes the divergent opinions of the Government and the trade unions on the effectiveness of measures to promote collective bargaining within the meaning of the Convention in small enterprises and on the mechanism for reaching an agreement through the approval by a 2/3 majority of the workers of a proposal submitted by the employer. The Committee also notes the allegations of the trade union organizations that, under Articles L. 2232-23 and L. 2232-23-1 of the Labour Code, in the event of the presence in the enterprise of an employee mandated by a trade union organization for the purposes of collective bargaining, the employer would have the choice of either negotiating with the latter or resorting to the other methods of concluding collective agreements provided for in the Labour Code in small enterprises and not involving trade union actors.

The Committee notes from the above that, under the legislation in force since 2017, there are three main ways of concluding collective agreements in small companies, each subject to specific rules and conditions: (i) the conclusion of an agreement with one or more trade union delegates or one or more employees mandated by a trade union organization; (ii) the conclusion of an agreement with one or more elected staff representatives not mandated by a trade union organization; and (iii) the approval of an employer’s proposal by a direct vote of the employees of the company by a two-thirds majority. The Committee notes that the first method is in line with Article 4 of the Convention, according to which collective bargaining takes place between employers and employers’ organizations on the one hand, and workers’ organizations on the other. With regard to the second modality, the Committee recalls, as indicated in its previous comment, that direct negotiation with elected staff representatives should only be possible in the absence of trade union organizations at the relevant level. As regards the third modality, the Committee considers that the adoption by a direct vote of the employees of a proposal by the employer does not have the characteristics of a collective bargaining mechanism within the meaning of the Convention. On the basis of the above, the Committee requests the Government to: (i) clarify whether, in a small enterprise where there is an employee mandated by a representative trade union organization for the purpose of collective bargaining, the employer may freely choose another method of concluding a collective agreement (negotiation with non-mandated elected staff representatives where they exist; submission by the employer of a proposal to a vote of the staff in the absence of elected staff representatives in enterprises with up to 20 employees); (ii) continue to provide statistics on the use of the different ways of concluding collective agreements in small enterprises; and (iii) continue to provide information on measures to promote collective bargaining between the employer and workers’ organizations in small enterprises.

In the context of the previous point, the Committee had also noted in its last comment that, following the reforms introduced by the ordinances of 22 September 2017, company agreements not signed by a trade union organization, particularly in companies with fewer than 50 employees and including those resulting from an employer’s proposal submitted to a vote of the employees, were able to set aside, on a significant number of subjects open to collective bargaining, clauses more favourable to employees established in branch agreements negotiated and signed by representative trade union organizations. Stressing that this option was not consistent with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee had requested the Government to: (i) provide information on the frequency and extent in practice of derogations from higher-level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher-level agreements enjoyed by agreements signed by non-union actors.

The Committee notes that the Government states that the Ministry of Labour does not have information on the number of company agreements signed by elected staff representatives or adopted through a direct vote by the workforce that derogate from branch agreements. However, the Government refers to a study published in 2021 by the Institute for Economic and Social Research (IRES) on collective bargaining practices and the articulation of branch and company agreements after the ordinances of 22 September 2017 in four different branches that concluded that: (i) the possibilities of derogation offered by the ordinances still appear to be little used by companies in the branches studied, with the exception of the Building and Public Works branch; and (ii) except in situations of strong economic or employment constraints, this possibility of mobilising derogatory practices also presupposes a key element: the existence of a negotiation dynamic within companies and the possibility of constructing give and take agreements.

The Government adds that during the health crisis caused by the COVID-19 pandemic, alternative procedures for concluding agreements enabled small companies to cope with the consequences of this crisis by benefiting from the “long-term partial activity scheme”, which was only accessible through a collective agreement. In companies with fewer than 20 employees, the vast majority of these agreements were adopted through a direct vote of employees.

The Committee notes that for its part, the CFE-CGC expresses its concern about the fact that agreements without prior negotiation allow for a substantial and potentially downward modification of the working conditions of employees in small enterprises. The trade union adds that interim evaluation report on the 2017 ordinances published by France Stratégie in 2020 is, in this respect, not reassuring. The CFE-CGC states that, according to this report, a third of 233 agreements with respect to overtime that were examined aimed to reduce the wage increase for overtime. The Committee notes the Government’s response in this regard, indicating that the contextual elements necessary to assess the importance of the rights and compensations granted by these agreements are missing.

The Committee notes the divergent interpretations of the trade union organizations and the Government and the difficulty of obtaining, at this stage, specific statistics on the extent and frequency of the use of the options for derogation recognized to collective agreements concluded by non-union actors. The Committee notes, however, that the Government does not provide any information on whether its request to revise the said opt-out has been taken into account. The Government states that the possibility of derogation recognized to collective agreements concluded through alternative procedures is necessary to enable small enterprises, where trade union presence is very weak, to benefit from the same capacity as large enterprises to adapt the law.

While noting that collective bargaining is indeed a fundamental adapting tool at the disposal of enterprises and sectors, the Committee again stresses that under Article 4 of the Convention, governments are required to promote bargaining between an employer, employers or their organizations on the one hand and workers’ organizations on the other. In these circumstances, the Committee reiterates that it considers that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations through agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention. The Committee therefore requests the Government once again to take, in consultation with the representative social partners, the necessary measures to review the possibility enjoyed by agreements signed by non-union actors to derogate from protective clauses contained in higher-level agreements negotiated by trade unions. The Committee requests the Government to provide information on any progress in this regard.

Promotion of collective bargaining. Platform workers. The Committee notes the examination by Parliament of the Bill ratifying Ordinance No. 2021484 of 21 April 2021 on the modalities of representation of self-employed workers using platforms for their activity and on the conditions for exercising this representation and empowering the Government to supplement through an ordinance the rules organising social dialogue with platforms. The Committee requests the Government to provide information on the results of this examination and on the adoption of any text concerning the exercise of the rights recognized by the Convention by platform workers, regardless of their contractual status.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the General Confederation of Labour-Force Ouvrière (CGT-FO) and of the Management Confederation of France-General Confederation of Managers (CFE-CGC), received respectively on 9 October 2019 and 30 October 2020, as well as the corresponding comments of the Government. The Committee observes that some of the issues raised in the observations of the CGT-FO and the CFE-CGC (in particular those regarding the level of collective bargaining, the holding of consultations with employees where the majority trade unions have opposed the signing of an enterprise agreement and the consequences of the merger of institutions representing the staff), are currently being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and CGT-FO under article 24 of the Constitution of the ILO.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes that the CGT-FO claims that, in a worsening social climate, acts of anti-union discrimination appear to be on the rise, such as keeping files of unionized employees, or dismissals on anti-union grounds. In that regard, the CGT-FO states that according to a 2019 enquiry by a public institution, the Defender of Rights: (i) nearly one in three working people (29 per cent) and one in two union members (52 per cent) consider that anti-union discrimination takes place often or very often; and (ii) a third of the working population believes that fear of management reprisals is the factor that dissuades most employees from engaging in trade union activity.

The committee notes that the CGT-FO calls on the Government to go beyond publication of statistics and public surveys, and to demonstrate genuine political will in policies to combat anti-union acts, including (i) extending the period of extra protection against dismissal following the expiry of trade union mandates or of the staff representatives in general which, subsequent to the 2017 reforms, is an aspect of particular importance where the representative institutions of staff are merged; and (ii) proper validation of the added career-value of trade union activities.

The Committee notes that the Government states firstly that Act No. 2015-994 of 17 August 2015 regarding social dialogue and employment instigated supplementary measures to protect unionized workers, in particular elected representatives, against all discrimination or any reprisals based on their trade union activity. The Government indicates in particular that: (i) section 4 of the Act establishes a system of a professional interview at the beginning and at the end of the mandate of elected or appointed staff representatives; ii) that interview is in addition to the two-yearly interview which, since the Act of 2015, can also serve to identify skills acquired during the mandate with a view to validating them; (iii) section 5 of the Act of 17 August 2015 provides a national system for certifying skills derived from exercising an elected or appointed mandate, supplemented by two Orders of the Minister of Labour of 18 June 2018, establishing certification of skills acquired in the exercise of a mandate as a staff representative or a trade union mandate; (iv) as part of the implementation of ordinances adopted in 2017, a guide for employees whose mandate is completed was published in August 2018; (v) section 6 of the Law of 17 August 2015 guarantees wage increases for staff representatives whose hours of union leave were equal or greater than 30 per cent of their hours of work, avoid any inequalities with other employees of the same occupational category and of comparable seniority; and (vi) under the ordinances of 2017 agreements to validate trade union activity can be negotiated at sectoral and enterprise level, a possibility already taken up by several large enterprises. The Committee notes that the Government refers secondly to the respective roles of the labour inspectorate and the courts in combatting anti-union discrimination. The Committee observes that the Government highlights: (i) regular inquiries conducted by the labour inspectorate to identify possible links between workers’ trade union activity and management action against them; (ii) adjusting the burden of proof required by the courts to facilitate the identification of anti-union acts and practices; (iii) reinstatements ordered by the courts in cases of discriminatory dismissal. Finally, the Committee notes the Government’s indication that the Act of 18 November 2016 makes it possible for trade union organizations to bring group actions to put a stop to discrimination affecting several employees.

The Committee takes particular note of the results of the survey on trade union discrimination conducted by the Defender of Rights, brought to its attention by CGT-FO. While welcoming the realization of this survey and encouraging its updating, the Committee observes that the results of the survey reveal the importance of adopting specific measures to strengthen prevention and penalize acts of anti-trade union discrimination, with regular monitoring of their implementation.

In that regard, the Committee takes due note of the legislative framework and the case law in place to provide an effective response to acts of anti-union discrimination. The Committee also notes with interest the guaranteed wage increases for staff representatives, including trade union representatives, as well as the measures taken to validate skills acquired during a staff representation mandate in general and a trade union mandate in particular, measures mentioned in the observations of the CFE-CGE as going in the right direction. The Committee underlines the relevance of such measures which can help to prevent anti-union discrimination. In view of the above, the Committee invites the Government to continue regularly to ensure, including by means of social dialogue, the efficiency and effectiveness of measures to prevent and penalize acts of anti-union discrimination. The Committee requests the Government to continue to provide information in that regard.

Article 4. Promotion of collective bargaining. The Committee notes that the CGT-FO and the CFE-CGC report that Ordinance No. 2017-1385 of 22 September 2017 (hereunder the Ordinance of 2017) would have the effect of weakening the role of trade union organizations in collective bargaining procedures, by allowing, in several situations, agreements to be concluded by non-union actors.

The Committee notes that the trade union organizations make specific reference to: (i) the possibility for the employer, where there is no trade union delegate in enterprises of between 11 and 49 workers, to choose to negotiate either with an elected staff representative or with an employee mandated by a trade union organization; (ii) the possibility, in enterprises of less than 20 employees, where there is neither a trade union delegate nor an elected staff representative, for the employer to draw up, alone and unilaterally, a draft agreement to be approved by the staff by referendum; and (iii) the collective bargaining prerogatives of the works council, a body that at present must be established with the agreement of the majority trade unions, but which could, according to the CGT-FO, under a possible next reform, be generalized in future.

The Committee notes that the CFE-CGC alleges that the above mention reform, by allowing agreements to be concluded without being endorsed by trade union organizations go against the principle that representation of workers by trade union organizations alone guarantees respect for the fundamental objective of regulating the balance of power in labour relations, inherent to the machinery of collective bargaining and given expression by the reference in Article 4 of the Convention to workers’ organizations only.

The Committee also notes that CGT-FO claims that the new mechanisms mentioned above would make it possible, without the participation of a trade union, to set aside the content of sectoral agreements concluded by trade union organizations at a higher level, thereby undermining freedom of association and the right to collective bargaining.

The Committee notes that the Government, for its part, after underlining that the vast majority of enterprises of less than 50 employees do not have a union delegate, maintains that new possibilities for bargaining are now open to them, so that they also can participate in defining better balanced solutions. The Committee notes that the Government indicates in this regard that under the Ordinance of 2017:

• -in enterprises of fewer than 11 employees without a union delegate, and in those with a staff of between 11 and 20 employees, where there is no member of the staff delegation on the social and economic committee, the employer may propose a draft agreement to the employees which, to be valid, must have the approval of a two-thirds majority of employees, on the model of approval of profit-sharing agreements (sections L. 2232-21 to L. 2232-23 of the Labour Code);
• -in enterprises where the usual staffing level is between 11 and 50 employees in which there is no union delegate, the employer may negotiate either with an employee (who may or may not be a member of the social and economic committee) mandated by a trade union organization, or with a member of the staff delegation on the social and economic committee. Where an agreement is signed by a mandated employee who is not a member of the staff delegation on the social and economic committee, it must be approved by a majority of the employees. (section L. 2332-23-1);
• -Finally, in enterprises with more than 50 employees in which there is no union delegate, the rules in force prior to this Ordinance remain valid, with the obligation to negotiate with a mandated member of the staff delegation on the social and economic committee or, if none of the members wishes to be mandated, by a non-mandated member or, if no member of the staff delegation wishes to negotiate, with a mandated employee (sections L. 2232-24 to L. 2232-26).

The Committee also notes the background information provided by the Government regarding density of trade union presence, collective bargaining and social dialogue in small and very small enterprises, which the Government claims justify the adoption of the measures cited above. The Government underlines that (i) trade union organizations have a very slight presence in small enterprises, since only 4 per cent of enterprises with 11 to 50 employees have a trade union delegate to negotiate agreements; and (ii) the system of mandating by a representative trade union in the sector has not proved its worth; thus, in 2017, out of more than 30,000 enterprise agreements concluded, only 197 were concluded with a mandated employee. This is especially marked in enterprises of less than 11 employees, where only 31 agreements were signed by a mandated employee and use of the mandating system concerned less than 1 per cent of enterprises entering into bargaining.

The Committee notes that the Government states, in this regard, that (i) the adapted modalities for collective bargaining were envisaged to take account of the reality of these small enterprises and to avoid their exclusion from the possibilities offered by enterprise agreements; (ii) those modalities do not however circumvent trade union organizations, since article L. 2232-21 of the Labour Code provides explicitly for their application in the absence of a trade union delegate or of an elected member of the staff delegation on the social and economic committee; (iii) the absence of prior negotiation with the trade union organizations cannot therefore constitute circumvention of those organizations since the mechanism in dispute is predicated on the hypothesis that negotiation with the trade union organizations is impossible, where the persons authorized to negotiate are absent; and (iv) the aim of the provisions is thus to bring pragmatic solutions allowing agreements to be concluded even in very small enterprises where dialogue between employer and workers is generally of an informal nature.

The Committee also notes that the Government adds that the Ordinance of 2017 provides the new collective bargaining mechanisms in small and very small enterprises with a certain number of guarantees to maintain the balance of the bargaining and protect the role of trade union organizations. The Committee notes that the Government indicates in this regard that: (i) in the case of draft agreements submitted directly to employees by the employer, the Labour Code establishes a minimum period of 15 days between the time at which the employer submits the draft and the time at which consultations with the staff may be held; the purpose of this 15 day period is to allow the employees to contact the departmental trade union organizations and/or the Observatory for the Analysis and Support of Social Dialogue and Bargaining of the department, so that they may provide information on the process and content of the proposed agreements; (ii) the large, two-thirds majority required for approval of the draft agreement obliges the employer to enter into dialogue with the employees, who become genuine stakeholders in the agreement; and (iii) in respect of bargaining with elected staff representatives where there is no trade union delegate, the scope of application of this type of bargaining is more restricted than bargaining in which trade union organizations participate, because the scope of agreements reached can solely cover implementing provisions of the law, or where the law imposes an agreement.

Finally, the Committee notes the information provided by the Government regarding the alleged impact of the establishment of works councils on the role of trade union organizations in collective bargaining. The Committee notes that the Government states in this regard that the notion that trade union organizations would be ousted from collective bargaining where works councils are recognized as competent in that field is unfounded in that: (i) the Labour Code stipulates that the establishment of a works council must be subject to signing an enterprise or sectoral agreement which is, by definition, concluded by the representative trade union organizations; and (ii) the representative trade union organizations in an enterprise are represented on the works council in the same way that they are on the social and economic committee and therefore participate fully in bargaining conducted by the works council.

The Committee takes due note of the information provided by the trade union confederations and the Government regarding the content of the Ordinance of 2017 in respect of collective bargaining and the effect of this reform on the role of trade union organizations. The Committee notes in particular the changes introduced in the methods of concluding enterprise agreements in small and very small enterprises where there is no trade union delegate. In that regard, the Committee notes that under French law, the participation of trade union organizations in the negotiation and conclusion of enterprise agreements is ensured either through a trade union delegate (a worker appointed, according to the express provisions of the Labour Code, by a representative trade union to represent it in enterprises of at least 50 employees; in enterprises of between 11 and 50 employees, elected staff representatives may also be appointed as delegates by trade unions), or through a mandated employee (an employee of an enterprise where there is no trade union delegate, given a mandate by a representative trade union organization to negotiate an enterprise agreement in its name).

The Committee notes that before the reform of 2017, in a context of low trade union presence in small enterprises and of a coexistence established under the French legal order of elected staff representatives and a trade union representatives, the legislation already provided for the possibility of concluding enterprise-level collective agreements by non-union actors in instances where there was neither a trade union delegate nor a mandated employee. At that time, it was possible for elected staff representatives to conclude collective agreements, the material scope of which was, however, limited to the measures whose implementation was subject by law to a collective agreement and whose content was, until the law of 8 August 2016, subject to prior approval by a joint sectoral committee.

The Committee notes that, as indicated both by the Government and the confederations, the Ordinance of 2017 effectively enlarges the situations in which an enterprise agreement may be concluded without signature by a trade union organization to the extent: that (i) mandating of an employee by a trade union organization is no longer envisaged for enterprises of fewer than 11 employees,; ii) in enterprises of fewer than 11 employees as well as in enterprises of between 11 and 20 employees, where there are no elected staff representatives, , a new, direct method of concluding an agreement between employer and employees is established; and (iii) in enterprises of between 11 and 49 employees where there are both elected staff representatives and an employee mandated by a trade union organization, the employer may now chose his or her bargaining counterpart (on the understanding that if bargaining takes place with an employee mandated by a trade union, but not elected by the staff, the staff must be consulted in its respect).

In respect of determining who is to enter into collective bargaining, the Committee recalls that Article 4 of the Convention refers on the one hand to employers and their organizations and, on the other, to workers’ organizations. On that basis, the Committee considers collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. Indeed, the Committee considers that direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations, where they exist, may undermine the principle of the promotion of collective bargaining set out in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 239).

In this regard, the Committee takes due note of the Government’s indication, supported by statistics, of the very low trade union presence in small and very small enterprises and its wish to adopt a pragmatic approach in promoting true social dialogue in such enterprises. The Committee also notes the figures provided by the Government concerning the practical implementation of the new modalities for collective bargaining arrangements in small and very small enterprise, according to which in 2018, excluding the instruments relating to employee savings plans: (i) 1,443 agreements were filed by enterprises with fewer than 11 employees, of which 75 per cent were subject to two-thirds ratification; and (ii) 850 agreements were filed by enterprises with 11 to 20 employees, of which 34 per cent were subject to two-thirds ratification.

At the same time, the Committee again observes that under the legislation in force subsequent to the 2017 reforms: (i) the appointment of a trade union delegate by a representative organization is explicitly provided, on the one hand, in enterprises of at least50 employees (section L. 2143-3 of the Labour Code) and, on the other, in enterprises of between 11 and 49 employees in which an elected staff representative may also be appointed as trade union delegate (section L. 2143-6); (ii) the mandating of an employee by a representative trade union organization is provided for enterprises of more than 11 employees where there is no trade union delegate (sections L. 2232-23-1 and L. 2232-24 and following of the Labour Code), while once again noting that in enterprises of between 11 and 20 employees, where there is neither a trade union delegate nor an elected representative, the employer may submit a text directly to a vote of approval by employees (section L. 2232-23 of the Labour Code).

Recalling that under the terms of the Convention collective bargaining with non-union representatives should only be possible when there are no trade unions at the respective level, the Committee requests the Government to: (i) specify the modalities in place to allow workers in enterprises of fewer than 11 employees on the one hand and of enterprises of 11 to 20 employees where there is no elected staff representative on the other, to engage, should they so wish, in bargaining and in concluding agreements regulating their working conditions and terms of employment through trade unions representing them (in cases where these modalities are included in sectoral collective agreements, it is requested to indicate the agreements providing for such possibilities); and (ii) give details of the measures taken to promote collective bargaining within the meaning of the Convention in small enterprises.

The Committee also notes, as underlined by the CGT-FO and the CFE-CGC, that the Ordinance of 2017 widens the range of subjects that can be included in an agreement that is not signed by a trade union organization in that, in enterprises of fewer than 50 employees, such agreements may now cover all areas open to collective bargaining. The Committee notes in that regard that, by virtue of the Ordinance of 2017, with the exception of a number of issues specifically defined by the law, the contents of enterprise agreements now take precedence over those concluded at a higher level (section L. 2253-3 of the Labour Code). The Committee observes that, in these circumstances, enterprise agreements that are not signed by a trade union organization, in particular in companies with fewer than 50 employees and including those arising from a proposal from the employer and submitted to a vote by the employees, can set aside, for a significant number of subjects open to collective bargaining, clauses that are more favourable to employees established in sectoral agreements and signed by representative trade union organizations. With regard to the implementation in practice of these possibilities of derogation, the Committee notes: (i) on the one hand, the concerns expressed by the CFE-CGC on the lack of sufficient guarantees to ensure the balance of the content of the agreements concluded in enterprises with less than 20 employees on the basis of a vote by the employees; and (ii) on the other hand, the Government's corresponding response focusing on collective performance agreements (types of collective agreements established by the Ordinance of 2017 that allow for the adjustment of working hours, remuneration or mobility of employees with the aim of preserving or developing employment or meeting the operating needs of the enterprise) and underlining that of the 297 collective performance agreements established until the end of December 2019, only 21 had been concluded through employee consultation. At the same time, the Committee also notes that, in its interim report of July 2020, the evaluation committee on the implementation of the ordinances concerning social dialogue and industrial relations established by the Ministry of Labour questions the ability of the collective performance agreements to reach balanced compromises and the use of negotiation modalities at the enterprise level in the context of the economic crisis generated by the COVID-19 pandemic.

Underlining that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations in favour of agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee requests the Government: (i) to provide information on the frequency and extent in practice of derogations from higher level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher level agreements enjoyed by agreements signed by non-union actors. The Committee requests the Government to provide information in this regard.

Finally, the Committee notes the additional information from the Government regarding the adoption of recent legislation and indicating that: (i) the Labour Act of 8 August 2016 promotes a culture of dialogue and bargaining by encouraging negotiation of agreed methodologies, setting out the stages of the bargaining to come and the information to be shared, and can also provide for specific additional resources; (ii) the social partners dispose of a wider margin for establishing the duration of collective agreements; and (iii) Act No. 2019-485 of 22 May 2019 and Act No. 2019-1428 of 24 December 2019 establish work-life balance of workers bearing a caregiver responsibility at home and transport from the place of residence to the workplace as new subjects for obligatory bargaining. The Committee welcomes these innovations which reinforce collective bargaining machinery and widen the field of their application.

[The Government is asked to reply in full to the present comment in 2021.]

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes, on the one hand, the Government’s report and, on the other hand, the observations of the General Confederation of Labour–Force Ouvrière (CGT–FO) received on 9 October 2019. The Committee notes that the observations of the CGT–FO concern, on the one hand, aspects raised in a representation filed under article 24 of the ILO Constitution currently under examination and, on the other hand, additional legislative and practical issues relating, inter alia, to the protection against anti-union discrimination and the possibility of concluding collective agreements with non-union representatives. The Committee requests the government to provide its comments on the additional issues contained in the CGT–FO’s observations.

[The Government is asked to reply in detail to the present comments in 2020.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee takes due note of the Government’s report. It also notes the comments of the International Trade Union Confederation (ITUC) concerning the negative impact on collective bargaining of the Act of 20 August 2008 (on the renovation of social democracy and reform of working time). The Committee requests the Government to provide observations in this respect and invites it to submit this matter for tripartite dialogue, especially within the High Council for Social Dialogue (set up under Act No. 2008) or any other tripartite body.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

In its previous comments, the Committee noted that section 10 of the Act of 21 August 2007 (Act No. 2007-1224) on social dialogue and continuity of the public service in regular land passenger transport provides that “the remuneration of an employee participating in a strike, including the wage and its direct and indirect supplements, with the exclusion of supplements for family responsibilities, shall be reduced on the basis of the time not worked by reason of participation in the strike”. It asked the Government to indicate whether this provision precluded the conclusion of specific agreements on this subject. The Committee notes the Government’s statement that this provision does not change existing practice under which remuneration of all or some of the strike days may be the subject of bargaining to end a dispute and that it does not, therefore, restrict the scope of the bargaining.

The Committee takes note of the observations received from the United Confederation of Workers (CTU) and the International Trade Union Confederation (ITUC) in communications of 22 April and 26 August 2009, respectively, and the Government’s replies to the matters raised.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received.

In its previous direct request, the Committee asked the Government to provide any decisions handed down regarding Ordinance No. 2005-892 of 2 August 2005, which had been challenged before the Council of State by the General Confederation of Labour – Force ouvrière (CGT–FO) among others (this Ordinance would have created exemptions from the establishment of representation structures for certain workers in certain enterprises). The Committee notes that the Council of State first suspended the application of the Ordinance as a preliminary measure and then set it aside by a decision of 6 July 2007.

The Committee notes that section 10 of the Act respecting social dialogue and continuity of the public service in regular land passenger transport of 21 August 2007 (Act No. 2007-1224), provides that “the remuneration of an employee participating in a strike, including the wage and its direct and indirect supplements, with the exclusion of supplements for family responsibilities, shall be reduced as a function of the time not worked by reason of participation in the strike”. The Committee requests the Government to communicate information on the application in practice of this provision, and in particular to indicate whether this provision prevents the parties from concluding particular agreements on this subject.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s reply to the observations of 25 September 2005 by the General Confederation of Labour – Force ouvrière (FO) criticizing aspects of the reports submitted by the Government in 2005. The FO objects to certain legislative texts on the grounds that they contravene the Convention. The FO refers mainly to Act No. 2004-391 of 4 May 2005 on lifelong vocational training and social dialogue, which amends certain provisions of the Labour Code concerning the negotiation of enterprise agreements in the absence of a trade union delegate, and coordination between interoccupational agreements, sectoral agreements and enterprise or establishment agreements, which, according to the FO, contravene Article 4 of the Convention. The Committee notes that in its replies to the FO’s observations, the Government states that the aim of the Act of 4 May 2004 is to build the social partners’ capacity to bargain, and to encourage social democracy by deepening the dialogue between the partners at all levels – interoccupational, sectoral and enterprise – and that the Act is also intended to strengthen the legitimacy of the social partners’ participation in the framing of legislation on labour relations. The Government further indicates that the Act draws largely on the common position of the social partners in establishing the ground rules for collective bargaining and then organizing the conclusion and termination of agreements democratically, by the will of the majority.

The Committee notes that since the period covered by the Government’s report ended on 1 July 2005, the report does not address the consequences of texts adopted after that date. The Committee notes that in answering the FO, the Government states that in its next report it will send Ordinance No. 2005-892 and the report on its effects.

The Committee notes that Ordinance No. 2005-892 of 2 August 2005 has been challenged before the Council of State by the FO, inter alia. In its decision of 19 October 2005, the Council of State declined to rule and applied to the Court of Justice of the European communities for a ruling on the compatibility of certain aspects of Ordinance No. 2005-892 with two European directives (Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, and Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies). The Council of State suspended the application of Ordinance No. 2005-892 by a preliminary injunction of 23 November 2005. The Committee requests the Government to send any decisions regarding this matter as soon as they have been handed down.

The Committee notes that a new type of contract, the “new recruitment contract”, has been created by Ordinance No. 2005-892 of 2 August 2005 and has been challenged before the courts. The Committee request the Government to provide all available information on the abovementioned legal proceedings.

Finally, the Committee notes with interest that the Council of State considers that the entry into force of the Preamble to the Constitution of 20 October 1946, the sixth paragraph of which implies that every legally constituted trade union organization is entitled (provided that it is representative) to participate in collective negotiations, implicitly but necessarily has the effect of repealing the provisions of section 10 of the Ordinance of 2 November 1945 in that they included in the monopoly conferred on the National Chamber of Bailiffs, issues arising out of the rights of occupational organizations, whether of employers or of workers. The Committee notes that the repeal of section 10 of the Ordinance of 2 November 1945, as registered in a court decision not subject to review, has the effect of securing the right to organize of bailiffs as employers and the right to collective bargaining of their occupational organizations.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report.

As regards the possibility for bailiffs and other ministerial offices (notaries, judicial auctioneers and valuers, solicitors) freely to choose organizations that represent their interests in the collective bargaining process, the Committee refers the Government to its comments under Convention No. 87.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information contained in the Government’s report and the comments sent by the General Confederation of Labour-Force Ouvrière. The Committee notes that the Government’s response to these comments has been recently received and intends to examine it at its next session.

A request concerning other points is being addressed directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information in the Government’s report including the three comments presented by the French Democratic Confederation of Workers (CFDT). It has also noted the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2233 (see 332nd Report, paragraphs 614 to 646, approved by the Governing Body at its 288th Session) concerning the right to collective bargaining of bailiffs, as employers, in the light of Order No. 45-2592 governing their status.

Article 4 of the Convention. The Committee notes that Order No. 45-2592 requires bailiffs to be members of the National Chamber of Bailiffs. Furthermore, the Administrative Court and the Administrative Court of Appeal have both recently established, on the basis of article 8 of the above Order, that the Chamber has sole competence for collective bargaining. The effect of this interpretation is to exclude the National Union of Bailiffs from the collective bargaining process despite its representativeness in the profession. The Committee further notes that the National Chamber of Bailiffs has a special status under which it is answerable to the administrative or judicial authority, has duties of a public nature and participates in the exercise of public authority. The Committee therefore asks the Government to take the necessary steps to amend Order No. 45-2592 so that bailiffs are free to choose for the purpose of representing their interests in the collective bargaining process, organizations which are employers’ organizations that may be regarded as independent of the public authorities, so as to ensure fully the voluntary nature of collective bargaining, in accordance with Article 4.

Lastly, the Committee notes that Orders governing the status of other ministerial officers contain similar provisions to those of Order No. 45-2592 and so raise issues of compatibility with the Convention. It refers in this connection to the following Orders of 2 November 1945: No. 45-2590 on the status of notaries; No. 45-2591 on the status of solicitors; and No. 45-2593 on the status of judicial auctioneers and valuers. The Committee requests the Government to review the provisions of these Orders as well in the light of the above comments and to respond to all the above matters in its next report.