Definitive Report - Report No 367, March 2013

Case No 2931 (France) - Complaint date: 02-FEB-12 - Closed

Allegations: The complainant organization denounces the judicial invalidation of the appointment of its union delegate further to its disaffiliation from a federation

1. 746. The complaint is contained in a communication dated 2 February 2012 from the French Union of Transport and Airport Activities at Paris Airports (STAAAP); STAAAP sent additional information in a communication dated 5 April 2012.
2. 747. The Government replied in a communication dated 20 June 2012.
3. 748. France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 749. In a communication dated 2 February 2012, the STAAAP denounces the judicial invalidation of the appointment of its union delegate further to its disaffiliation from a federation.
2. 750. The STAAAP indicates that, in occupational elections held at Aéropass, a French company, on 13 February 2009, it obtained a score enabling it to appoint a union delegate. It points out that at the time of the elections it was affiliated to the CFTC General Federation of Transport but it decided on 30 April 2009 to disaffiliate from this federation in order to join a different one (the Autonomous Federation of Transport (FAT)/UNSA). It adds that, further to this disaffiliation, the CFTC General Federation of Transport together with Aéropass brought a legal challenge against the 21 October 2009 appointment of the STAAAP union delegate.
3. 751. The STAAAP provides copies of two court decisions: a judgment of 15 January 2010 issued by the lower court invalidating the appointment of the STAAAP union delegate, and a ruling of 18 May 2011 issued by the Labour Division of the Court of Cassation (highest court of appeal in France) upholding the invalidation, on the grounds that “affiliation to a confederation as the basis on which a trade union puts forward candidates for the first round of elections to appoint full members of a works committee is a key factor in the voting process” and “consequently, in the event of disaffiliation after these elections, the trade union cannot continue to use the votes thus gained as the basis for claims to representativeness”.
4. 752. The STAAAP asks the Committee to find that there has been a violation of freedom of association by the State on account of the ruling handed down by the national court; it asks that free affiliation to a federation should be explicitly recognized by French law, which, according to the STAAAP, should spell out that disaffiliation does not affect the results of, or the allocation of votes obtained in, occupational elections.
5. 753. In a new communication dated 5 April 2012, the STAAAP describes a situation similar to the one presented in its initial complaint. It points out that, in the elections for the sole staff delegation held on 12 April 2011 at the Aéro Piste company, it obtained a sufficient score to enable it to appoint a union delegate. The STAAAP adds that on 27 September 2011 FAT/UNSA, to which it was affiliated at the time of these elections, took the decision to disaffiliate it. The STAAAP attaches to its communication a copy of the letter from this federation informing it of its disaffiliation and citing various grounds, and a copy of the letter which it sent to the federation in reply.
6. 754. Having been informed of the disaffiliation, the employer brought a legal challenge in the lower court against the 14 October 2011 appointment of a union delegate by the STAAAP, citing the disaffiliation of the union and its resulting loss of representativeness. By a judgment of 10 February 2012 (a copy of which is supplied by the complainant), the lower court invalidated the appointment of the union delegate by the STAAAP, basing its decision on the ruling handed down by the Court of Cassation on 18 May 2011.
7. 755. The STAAAP considers that if the approach adopted in the ruling of 18 May 2011 issued by the Labour Division of the Court of Cassation were extended to cases where disaffiliation is imposed on a union, this would expose primary-level unions to the risk of arbitrary disaffiliation.

B. The Government’s reply

1. 756. In its communication of 20 June 2012, the Government refers to the ruling of 18 May 2011 handed down by the Labour Division of the Court of Cassation. It emphasizes that the issue before the Court was the interpretation of sections L.2122-1 and L.2143-1 of the Labour Code, and it recalls that these sections derive from Act No. 2008-789 of 20 August 2008 concerning the renewal of social democracy and the reform of working hours. The Government points out that the Act does not say anything about the effect of disaffiliation of a trade union on representativeness. It considers that neither freedom of association nor the right to affiliate or disaffiliate is called into question by the abovementioned ruling. The Government notes the judge’s view that since representativeness in the enterprise is based, in particular, on the results of occupational elections, the criteria governing the elections have a decisive impact on the choices made by the workers; hence explicit affiliation to a trade union confederation with a nationwide membership is a key element which affects how workers vote, and this must be taken into account when defining representative trade unions in the enterprise.

C. The Committee’s conclusions

1. 757. The Committee notes that the present case is concerned with the judicial invalidation, in two similar cases, of the appointment of a trade union delegate by the STAAAP further to its disaffiliation from a federation.
2. 758. The Committee notes that, in the first case, in the occupational elections held on 13 February 2009 at Aéropass, a French company, the STAAAP, which was affiliated at the time to the CFTC General Federation of Transport, obtained a score enabling it to appoint a union delegate. Further to the decision taken by the STAAAP on 30 April 2009 to disaffiliate from this federation, the latter together with Aéropass brought a legal challenge against the 21 October 2009 appointment of the STAAAP union delegate. The Committee notes that, by a ruling of 18 May 2011, the Labour Division of the Court of Cassation upheld the decision by the lower court to invalidate the appointment of the STAAAP delegate, on the grounds that “affiliation to a confederation as the basis on which a trade union puts forward candidates for the first round of elections to appoint full members of a works committee is a key factor in the voting process” and “consequently, in the event of disaffiliation after these elections, the trade union cannot continue to use the votes thus gained as the basis for claims to representativeness”.
3. 759. The Committee notes that, in the second case, in the elections for the sole staff delegation held on 12 April 2011 at the Aéro Piste company, the STAAAP, which was affiliated at the time to the FAT/UNSA, obtained a sufficient score to enable it to appoint a union delegate. Further to the decision taken by this federation on 27 September 2011 to disaffiliate the STAAAP, the employer challenged the 14 October 2011 appointment of a union delegate by the STAAAP in the lower court. This court, by means of a judgment of 10 February 2012, invalidated the appointment of the union delegate by the STAAAP, basing its decision on the 18 May 2011 ruling of the Court of Cassation.
4. 760. The Committee notes that the Government refers in its reply to the 18 May 2011 ruling handed down by the Labour Division of the Court of Cassation and emphasizes that the issue before the Court was the interpretation of sections L.2122-1 and L.2143-1 of the Labour Code. As recalled by the Government, these sections derive from Act No. 2008-789 of 20 August 2008 concerning the renewal of social democracy and the reform of working hours. The Committee notes the Government’s indication that the Act does not say anything about the effect of disaffiliation of a trade union on representativeness. For the Government, neither freedom of association nor the right to affiliate or disaffiliate is called into question by the abovementioned ruling. The Government notes the judge’s view that since representativeness in the enterprise is based, in particular, on the results of occupational elections, the criteria governing the elections have a decisive impact on the choices made by the workers and hence explicit affiliation to a trade union confederation with a nationwide membership is a key element which affects how workers vote and this must be taken into account when defining representative trade unions in the enterprise.
5. 761. Lastly, the Committee notes the ruling of 28 November 2012 issued by the Labour Division of the Court of Cassation rejecting the STAAAP’s appeal against the lower court judgment of 12 February 2012 and upholding the invalidation of the appointment of a union delegate by the STAAAP further to the elections of 12 April 2011. The Court of Cassation states in particular that “affiliation to a confederation as the basis on which a trade union puts forward candidates for the first round of elections to appoint full members of a works committee is a key factor in the voting process” and considers that “consequently, in the event of disaffiliation after these elections, the trade union cannot continue to use the votes thus gained as the basis for claims to representativeness, even where the decision to disaffiliate originates from the confederation”.
6. 762. The Committee therefore observes that, in both cases presented by the STAAAP, the Court of Cassation considered that affiliation to a confederation as the basis on which a trade union puts forward candidates for the first round of elections to appoint full members of a works committee constitutes a key factor in the voting process and consequently issued a ruling regarding the validity of the appointment of a union delegate by the STAAAP.
7. 763. The Committee observes that, as pointed out by the Government, Act No. 2008-789 of 20 August 2008 concerning the renewal of social democracy and the reform of working hours does not say anything about the effect of disaffiliation of a trade union on the allocation of votes obtained in occupational elections and therefore on its representativeness within the enterprise. The ensuing legal vacuum has given rise to disputes in practice, as borne out by the specific cases described by the complainant organization. These disputes have been settled by the judicial authority, as is right and proper.
8. 764. The Committee notes that, pursuant to the case law thus established by the Court of Cassation, where disaffiliation of a trade union, whether chosen or imposed, occurs after occupational elections, the trade union may no longer use the results obtained as a basis for claiming to be representative. The Committee considers that, inasmuch as the Court considered that the question of affiliation to a confederation constituted a key factor in the choice made by workers at the time of elections, the resulting loss of representativeness is indeed justified. However, the Committee observes that the principle established is specific to the system of labour relations in France and invites the Government and the social partners to consider whether this issue should be examined within the High Council for Social Dialogue (HCDS) established by the Act of 20 August 2008, with a view to reconciling the need to ensure respect for the choices made by workers at the time of voting and the need to reduce to a minimum the possible impact of such a situation on the freedom of primary-level unions to affiliate to, and disaffiliate from, trade union confederations.

The Committee’s recommendation

1. 765. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • While considering that the case law established by the Court of Cassation is in line with the principles of freedom of association, the Committee, observing that the principle established is specific to the system of labour relations in France, invites the Government and the social partners to consider whether this issue should be examined within the High Council for Social Dialogue (HCDS) established by the Act of 20 August 2008, with a view to reconciling the need to ensure respect for the choices made by workers at the time of voting and the need to reduce to a minimum the possible impact of such a situation on the freedom of primary-level unions to affiliate to, and disaffiliate from, trade union confederations.