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- 59. The Committee examined the substance of this case at its November
2011 meeting [see 362nd Report, paras 848–964]. The Committee recalls that the complaint
presented by the Confédération générale du travail–Force ouvrière (CGT–FO) concerned the
conformity of the provisions of the Act of 20 August 2008, to renew social democracy and
to reform working hours and its implementing texts, with the provisions of Conventions
Nos 87, 98 and 135, which France has ratified. In its recommendations, the Committee
invited the Government, within the framework of the High Council for Social Dialogue
(HCDS) set up for this purpose, to review the various points to which its attention had
been drawn and to take appropriate steps where issues or obstacles affecting freedom of
association and the right to collective bargaining were identified in the context of the
application of the Act of 20 August 2008 and its implementing texts. It requested the
Government to keep it informed of the conclusions drawn and opinions issued by the HCDS
[see 362nd Report, para. 964].
- 60. In a communication dated 15 March 2013, the complainant organization
deplores the fact that the Government has still not given effect to the Committee’s
conclusions on two particular points. These concern, on the one hand, the Committee’s
conclusions relating to the freedom to appoint the trade union delegate responsible for
representing the trade union within the enterprise, particularly in the context of
collective bargaining and, on the other hand, those relating to the appointment and the
duration of the mandate of a union branch representative, in view of the right of trade
union organizations to organize their administration and activities in accordance with
Article 3 of Convention No. 87. As regards these two points, the complainant
organization recalls that the Committee expressly invited the Government to examine, in
consultation with the social partners, the possibility of amending the legislation in
the light of the principles recalled on that occasion. The complainant organization
indicates that it raised the matter with the Government on several occasions (December
2011, June 2012 and February 2013) regarding the Committee’s conclusions. The CGT–FO
regrets that, to date, the Government has merely referred to an evaluation of the
implementation of the Act of 20 August 2008, which is to be carried out during the
second half of 2013.
- 61. Furthermore the complainant organization regrets that the Court of
Cassation, in a decision dated 20 June 2012, confirmed the judgment of the court of
first instance (judgment of 20 May 2011 of the Metz city court) that denies a trade
union the freedom to appoint its trade union delegate. In this case, the court denied
the right of a trade union to appoint one of its members on the grounds that the member
failed to meet the criteria set out in the Act (having stood as a candidate in
occupational elections that were open to all workers and not only to members of the
trade union), finding that the denial of that right did not constitute “arbitrary
interference in the functioning of the trade union” or violate “any prerogative that is
inherent in freedom of association”. Recalling the Committee’s conclusions on this
subject [see 362nd Report, paras 947 and 952], the complainant organization considers
that the situation calls for urgent action that involves amending the legislation and
fully restoring the freedom of organizations recognized as representative to choose
their union delegates for the purpose of collective bargaining, as well as the freedom
of a trade union to decide on the person who is best able to represent it within the
enterprise and to defend its members in their individual claims, even when that person
fails to obtain 10 per cent of the votes cast in occupational elections.
- 62. In a communication dated 20 August 2012 relating to the action taken
on the Committee’s recommendations in this case, the Government reiterates its intention
to report on the evaluation of the Act of 20 August 2008 and on the consultations held
within the framework of the HCDS on the different points raised. The Government points
out that an evaluation of the implementation of the reform of trade union
representativeness is scheduled to be carried out during the second half of 2013. A
report on the application of the provisions on determining representativeness and on the
implementation of the new rules for validating collective agreements is to be submitted
to Parliament. It is also planned that the HCDS will submit the conclusions to be drawn
from this report and, more generally, from the application of the Act of 20 August 2008,
to the Labour Minister. Lastly, the Government states that it does not wish to call the
reform into question, but rather to determine whether adjustments are necessary.
- 63. In the light of the information provided by the complainant
organization and the Government, the Committee requests the Government to report on the
evaluation of the application of the Act of 20 August 2008 on the basis of the report
submitted to Parliament on that subject and on the consultations held in the HCDS. The
Committee hopes that this evaluation will duly take into account the concerns expressed
above, as well as the Committee’s conclusions and recommendations. Lastly, the Committee
urges the Government to report on any measures that may eventually be considered or
taken following the evaluation.
