Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - France (Ratification: 1951)

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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.