Rapport définitif - Rapport No. 330, Mars 2003

Cas no 2193 (France) - Date de la plainte: 09-AVR. -02 - Clos

Allegations: The complainant alleges failure to comply with Convention No. 87 in view of the provisions of French legislation determining the most representative trade union organizations for the purposes of participation in the joint civil service bodies.

1. 663. The complaint is presented in a communication dated 9 April 2002 from the National Trade Union of Technical Teaching, Action, Autonomous (SNETAA).
2. 664. The Government sent its observations in a communication dated 12 December 2002.
3. 665. 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. 666. Before expounding the details of its allegations, SNETAA states that it is a trade union organization governed by the provisions of the Labour Code and has around 13,000 members. Formerly a member of the Unitary Trade Union Federation (FSU), from which it was excluded, it is currently a member of the federation called “Trade Unions Effectiveness Independence Secularism (EIL), Federalized and Unitary”. SNETAA further clarifies that at the end of the 1999 social elections it obtained, particularly among teachers at vocational schools, 43 per cent of the votes, making it the most representative organization in this sector.
2. 667. The complaint concerns section 94 of Law No. 96-1093 of 16 December 1996 (on employment in the civil service and various measures of a statutory nature). SNETAA states that section 94, amending the rules governing social elections, makes the representative nature of the organization presenting the list of candidates a prerequisite for the submission of candidatures to these elections, when it is precisely these elections which should determine that representativeness. Moreover, section 94 creates two new alternative tests of trade union representativeness for the purposes of participation in the first round of the ballot, in that in order to present lists for professional elections, trade unions or trade union associations must meet one of the two following requirements. Firstly, trade unions must belong to trade union associations, which are assumed to be indisputably representative if they meet one of the following two conditions: either (a) they have at least one seat in the upper councils of the state civil service, the regional civil service, and of the hospital civil service; or (b) they received both 10 per cent of the total ballot in the three civil services and more than 2 per cent in each of the civil services at the previous elections. Trade unions which do not meet either of these two conditions and cannot therefore enjoy a presumption of representativeness must – and this is the second requirement – demonstrate their representativeness according to the ordinary law criteria set out in section L.133-2 of the Labour Code, i.e. membership, independence, membership fees, the experience and age of the trade union and patriotic attitude during the occupation (this last criteria has become obsolete). SNETAA clarifies furthermore that a second round of the vote can be organized if none of the representative organizations have presented lists, or if the number of voters is below a quorum. During the second round, candidate lists may be presented by any civil servants’ trade union organization. However, according to the complainant, it will never be possible to organize this second round.
3. 668. SNETAA underlines the importance of what is at stake in social elections. These elections determine which trade unions will be authorized to participate in the various joint civil service bodies, in which civil servants’ rights and working conditions are defended; SNETAA cites in particular: (a) the joint administrative commissions empowered to take decisions on many career-related matters (advancement, promotions and appointments); (b) the committees on health and safety and working conditions; (c) the joint technical committees which define the staff regulations and decide on the distribution of resources devoted to education by the State; (d) the education councils which decide on major policies in the area of education.
4. 669. SNETAA argues that section 94 is incompatible with Convention No. 87 for the following reasons. Firstly, it violates Article 3, paragraph 1, of the Convention (the right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities). This is because the first requirement set by section 94 recognizes the representativeness of a trade union by its membership in a trade union association or federation enjoying the assumption of representativeness, which has the following dual consequence: on the one hand, this restricts trade unions to joining associations recognized as being representative and, on the other hand, it violates the right of newly formed organizations to participate in social elections – including organizations formed as a result of break-up of trade union associations – as only the overall results achieved previously are taken into account, without consideration of the reality of the trade union audience among the workers affected in the electoral field. Finally, this provision is discriminatory because it applies two different systems of law to those organizations recognized automatically as being representative and those that have to prove their representativeness.
5. 670. Secondly, section 94 violates Article 5 of the Convention (right of organizations to establish federations and confederations). Section 94 prohibits the presentation of concurrent lists by organizations belonging to the same association. This means in fact that the trade union organizations are totally dependent on the trade union associations, which claim the right to interfere in the prerogatives of affiliated unions whilst having no obligation to make provision for the practical details of selecting the trade unions allowed to participate in the elections or to select, at least, the most representative trade union. SNETAA asserts that, in these circumstances, trade unions forfeit their right to choose a trade union association, particularly as only four federations or confederations enjoy the presumption of representativeness set out in law.
6. 671. Section 94 also contravenes Article 3, paragraph 2 (obligation of the public authorities to refrain from any interference), and Article 8, paragraph 2 (the law of the land shall not be applied so as to impair the guarantees provided for in the Convention), of the Convention. SNETAA maintains first of all that section 94 has added a condition to the criteria for representativeness set out in section L.133-2 of the Labour Code, since trade union organizations have to meet the criteria “within the framework of the election”. SNETAA claims that by making it more difficult to show that the criteria are met, the law restricts the right of participation in social elections. Moreover, SNETAA asserts that the administration claims the right to assess in a discretionary manner, on a case-by-case basis, the representativeness of the trade unions standing for elections. Indeed it selects, without the need to justify its decisions, the trade unions allowed to present candidates and who are not automatically considered de facto to be “official trade unions”; furthermore, the criteria set out in section L.133-2 grant the administration considerable leeway in their assessment. Finally, the deadline for appeals against decisions by the administration rejecting lists of candidates from trade unions not considered to be representative is extremely short, namely three days with effect from the deadline for submitting the lists. The second requirement set by law for organizations having to prove their representativeness has several consequences, according to SNETAA. The refusal to allow a trade union, which is nonetheless representative, to participate in national and decentralized elections in state education (divided into 32 local authorities) could result in the trade union having to bring more than 30 appeals before the court, within a maximum period of three days and without the appeal having any suspensive effect. In addition, the state education administration, in a 1999 circular, set itself no deadline for judging the admissibility of the lists. According to SNETAA, the administration need only extend at its discretion the deadline for the admission of lists from trade unions required to demonstrate their representativeness beyond the three-day limit in which appeals are permitted in order to deny trade unions whose lists have been rejected any means of recourse before the courts, the three-day limit having already expired. SNETAA recalls that those trade union federations or associations enjoying the presumption of representativeness are protected from such practices. The trade union associations that thus enjoy, entirely legally, the presumption of representativeness are quasi-permanent holders of the seats in the joint bodies, irrespective of how representative they really are.
7. 672. As well as its own by-laws and those of the federation to which it is affiliated, SNETAA has appended to its complaint the relevant legislative and regulatory texts.

B. The Government’s reply

1. 673. In its communication of 12 December 2002, the Government identifies the following five grievances in the complaint presented by SNETAA. As regards the violation of Article 3, paragraph 1, and Article 5 of the Convention, SNETAA considers that section 94: (1) establishes a system which discriminates between trade union organizations; and (2) prohibits the presentation of concurrent lists for a single federation or confederation at an election. As regards the violation of Article 3, paragraph 2, and Article 8, paragraph 2, of the Convention, SNETAA asserts that: (3) the assessment of the representativeness of trade union organizations within the framework of the election is contrary to the Convention; (4) the administration claims the right to assess, in a discretionary manner and on a case-by-case basis, the representativeness of the trade unions in the elections; and (5) the administration did not set itself, in its memorandum of 21 July 1999, a maximum period of three days to assess the admissibility of the lists, which may prevent an appeal by a trade union organization whose list has been refused by the administration. The Government addresses these grievances one by one as follows.
2. 674. As regards the first grievance, the Government indicates that section 14 of Law No. 84-16 of 11 January 1984 (on statutory provisions pertaining to the state civil service) as amended by section 94 of Law No. 96-1093 of 16 December 1996, organizes elections to the joint administrative commissions based on a two-ballot electoral mechanism. The first is reserved for representative civil servants’ trade union organizations, their representativeness being determined in accordance with section 9bis of Law No. 83-634 of 13 July 1983 (on the rights and obligations of civil servants), inserted by section 94 of the 1996 law. That representativeness is assessed by way of an assumption in favour of civil servants’ trade unions or trade union associations that hold at least one seat in each of the upper councils of the state civil service, the territorial civil service and the hospital civil service, or receive at least 10 per cent of total votes cast at the elections held to select the representatives to the joint administrative commissions and at least 2 per cent of votes cast at the same elections in each branch of the civil service. Failing that, trade union organizations establish their representativeness by satisfying, within the framework of the election, the provisions of section L.133-2 of the Labour Code. The justification for this electoral method lies in concern to avoid the fragmentation of trade union representation and guarantee the effectiveness of trade union consultation by limiting the number of the administration’s interlocutors to the most representative civil servants’ organizations.
3. 675. As regards the second grievance, the Government explains that trade unions belonging to a representative trade union organization enjoy the presumption of representativeness, subject to the proviso (provided for in sections 16 and 17 of Decree No. 82-451 of 28 May 1982) that they may present concurrent candidatures at the same election and must indicate the membership of the association on the ballot paper. If trade unions persist in presenting concurrent lists, the administration is required to determine their representativeness according to the criteria set out in section L.133-2. The Government maintains that these provisions allow: (a) for trade union groups to arbitrate fairly between their trade union organizations without fostering a competitive system; (b) for the assumption of representativeness not to be favoured over and above its principle; (c) in all cases – whether concurrent lists are maintained or not – for organizations that can no longer avail themselves of the presumption of representativeness of their federation or association to be guaranteed the possibility of proving their representativeness under the conditions of ordinary law as set in section L.133-2 of the Labour Code.
4. 676. As regards the third grievance, the Government explains that the fact that representativeness is assessed within the framework of the election allows a trade union organization to be represented at local level, if it wins enough votes at that level in one or more bodies of civil servants, even if it does not win enough votes at national level. Similarly, an organization represented at national level and in the majority of civil servants’ bodies will not automatically be represented at local level if it only obtained a very small number of votes at that level for that body of civil servants.
5. 677. As regards the fourth grievance, the Government maintains that the administration judges the admissibility of candidate lists, and therefore the representativeness of trade union organizations, not in a discretionary manner but according to the criteria set out in the amended section 14 of the Law of 11 January 1984. According to jurisprudence in the matter, the criteria are not cumulative but result in an investigation of a range of indices allowing representativeness to be assessed. Moreover, the Government emphasizes that decisions on the admissibility of a list must be justified in accordance with section 15 of Decree No. 82-451 of 28 May 1982. This obligation of justification was recalled in the implementation circular of 23 April 1999 and in the memorandum of 21 July 1999 of the Department of Education.
6. 678. As regards the fifth grievance, the Government emphasizes that the memorandum of 21 July 1999 recalls the requirement of fixed deadlines set by section 14 of the Law of 11 January 1984 (three days to contest a decision on the admissibility of the lists) and by section 15 of the Decree of 28 May 1982. Under the terms of this last provision, a decision stating that a list is unacceptable must be submitted the day after the deadline for the submission of lists at the latest. The aforementioned circular of 23 April 1999 emphasizes the care that the administration must take in examining the admissibility of the lists. If it were to extend the deadline for submitting the lists – presuming that such an extension were possible – the deadline for appeals would also be extended automatically.
7. 679. The Government concludes that the sum of the legislative and regulatory provisions, as well as the way in which they are applied are consistent with the principles of freedom of association, and in particular with the principle of representativeness being determined according to objective, predetermined criteria.
8. 680. In support of its reply, the Government has also appended extracts from the relevant legislative and regulatory provisions.

C. The Committee’s conclusions

1. 681. The Committee notes that the complaint concerns the compatibility of the legislative and regulatory provisions applicable to the civil service, and pertaining to the representativeness of trade union organizations and the privileges which that brings, with the principles of freedom of association. The Committee notes that the complainant does not contest the principle of a distinction being made between trade union organizations according to the degree of their representativeness.
2. 682. In the light of the information provided by the complainant and the Government, as well as the extracts from the legislative and regulatory texts appended to their respective communications, the Committee notes that the contested procedure can be described in the following manner. The key election is that of staff representatives within the joint administrative commissions. The results of this election effectively determine, to a large extent, the participation of trade union organizations in other joint bodies. For this election, section 94 of Law No. 96-1093 (see appended copy) provides for two ballots, the second ballot being optional because it is only organized if certain conditions for the organization of the first ballot or the validation of its results are not met. For the first ballot, only the representative civil servants’ trade union organizations may present lists of candidates. With regard to the determination of the representativeness of trade union organizations, the law distinguishes between two scenarios. The first scenario is that of those trade union organizations (trade unions or associations) that are presumed to be representative either because they hold at least one seat in each of the upper councils of the state civil service, the territorial civil service and the hospital civil service, or because they won at least 10 per cent of total votes cast at the previous elections for determining staff representatives within the joint administrative commissions and at least 2 per cent of votes cast in each of the three civil service categories. If trade union organizations do not fulfil these conditions for enjoying the presumption of representativeness, the law provides for a second scenario, when the organizations in question meet the ordinary law criteria of representativeness set out in section L.133-2 of the Labour Code, i.e. membership, independence, membership fees, and the experience and age of the trade union.
3. 683. In addition, the Committee notes that organizations belonging to the same federation or confederation may not present concurrent lists and that appeal routes exist for contesting the administration’s decisions as regards the admissibility of lists, i.e. as regards the representative nature of the organization.
4. 684. The Committee notes that the complainant claims that the entirety of this provision is contrary to Article 3, Article 5 and Article 8, paragraph 2, of Convention No. 87, whilst the Government considers it compatible with the principles of freedom of association, and in particular with the principle of representativeness being determined according to objective and predetermined criteria.
5. 685. The Committee recalls that the determination of the most representative organization, with the ensuing range of rights and advantages, is not in itself contrary to the principles of freedom of association, provided that certain conditions are met. First, this determination must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. In this respect, the Committee recalls, on the one hand, that such criteria should be set by law and that the representativeness of the occupational organization should not be left to the discretion of the Government; on the other hand, these criteria must not become excessive to the point of it being difficult for an organization to meet them. Moreover, the Committee emphasizes that the distinction made between trade union organizations according to their representativeness should generally be limited to the recognition of certain preferential rights, for example in the area of collective bargaining or of consultation by the authorities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 310 and 315].
6. 686. Regarding the specific case, the Committee notes by way of introduction that the criteria for determining representativeness are established by law and that they are established for the purposes of participation in the various joint bodies consulted by the administration on civil servants’ careers and working conditions.
7. 687. As regards the criteria themselves, the Committee notes that those on which the presumption of representativeness is based meet the requirements recalled above in that they are based on specific, instantly verifiable data. This also applies to the ordinary law criteria which, even if (as the complainant emphasizes) they are not quantifiable, are sufficiently detailed in the Labour Code and are based on objective elements of the composition and running of a trade union organization which are customarily taken into account in determining representativeness. While noting the Government’s observations on jurisprudence in the matter to the effect that the determination of these criteria allows the administration a certain flexibility in assessment, the Committee emphasizes that this flexibility is largely to the benefit of trade union organizations to the extent that they do not have to meet all these criteria concurrently; moreover, this assessment is carried out under the supervision of an administrative judge, a point to which the Committee will return later on. Furthermore, the Committee takes full note of the Government’s explanations as regards the fact that representativeness is assessed according to ordinary law criteria within the framework of the election and that this condition is by its very nature more favourable to trade union organizations with a local presence.
8. 688. Regarding the distinction between those trade union organizations enjoying the presumption of representativeness and those having to prove their representativeness according to legal criteria, the Committee is of the opinion that this distinction raises the question of knowing whether the presumption favours the former in such a way as to constitute an infringement of the freedom of workers to choose freely the organization they wish to join. In the light of the indications of the legislative and regulatory texts provided by the complainant and the Government, the Committee observes that, whilst the assumption of representativeness tends to favour a certain stability in the representation of trade union organizations within the joint bodies, it does not constitute the exclusive means of designating trade union organizations, and that the law offers other organizations the opportunity to demonstrate their representativeness. In addition, the presumption of representativeness applies only to the candidature admissibility stage; in the election of staff representatives within the joint administrative commissions, candidates from all the representative trade union organizations are on an equal footing. Moreover, the Committee notes that, in particular, the trade union organizations able to enjoy the presumption of representativeness accorded to the federation or confederation to which they belong cannot present concurrent lists, thus avoiding a representative trade union group having a virtual monopoly over the nomination of candidates for elections and therefore preserving the freedom of organizations to join the federations and confederations of their choosing without their decision being influenced by the prospect of automatically enjoying the presumption of representativeness. Furthermore, the Committee notes the explanations provided by the Government to the effect that the preservation of concurrent lists within such trade union organizations does not preclude their participation in elections according to the ordinary law criteria for determining representativeness. Finally, regarding the selection by the federation or confederation of the trade union organization that will benefit from the presumption of representativeness, the Committee notes that this is an internal matter concerning relations between the federation or confederation and its members and that it falls to the interested parties to settle the matter themselves.
9. 689. The Committee notes that the assessment of the admissibility of lists of candidatures by the administration is carried out under the supervision of a judge, and that such supervision can be carried out with full knowledge of the facts because, under the terms of section 15 of Decree No. 82-451 of 28 May 1982, as amended by Decree No. 98-1092 of 4 December 1998, the administration must justify any decision of inadmissibility, which has to be given within a short period (at the latest the day after the deadline for submitting candidatures). The Committee notes, from the implementation documents attached to the complaint and to the reply, that the appeal to the judge is made and considered according to an emergency procedure and that the role and responsibilities of the administration as regards the admissibility of the lists of candidatures have been set out in detail in the implementing documents of the law and in particular in the memoranda of the Ministry of Education.
10. 690. From the above considerations, the Committee concludes that the legislative provisions regarding the determination of the representative civil servants’ trade union organizations for the purposes of the election of staff representatives to joint civil service bodies is not incompatible with the principles of freedom of association.

The Committee's recommendations

1. 691. In the light of the foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Z. Annex

• Section 94 of Law No. 96-1093 of 16 December 1996 on public service employment and various measures of a statutory nature
• Section 94. I. After article 9 of Law No. 83-634 of 13 July 1983 on rights and obligations of civil servants, a section 9bis shall be inserted as follows:
• Section 9bis. Considered as representative of the entirety of the staff subject to the provisions of the present law shall be those civil servants’ trade unions or trade union associations which:
  1. 1 hold at least one seat in each of the upper councils of the state civil service, the territorial civil service and the hospital civil service; or
  2. 2 obtain at least 10 per cent of the total votes cast in the elections organized in order to designate the staff representatives, subject to the provisions of the present law, to the joint administrative commissions and at least 2 per cent of the votes cast at these same elections in each branch of the civil service. This shall be assessed on the date of the most recent renewal of each of the aforementioned upper councils.
• For the implementation of the provisions of the preceding paragraph, only those trade union associations whose by-laws provide for the existence of executive bodies appointed directly or indirectly by a deliberative body and with permanent resources made up in particular of the payment of membership fees by its members shall be taken into consideration as civil servants’ trade union associations.
• II. The second paragraph of section 14 of Law No. 84-16 of 11 January 1984 on statutory provisions relating to the state civil service, the third paragraph of section 29 and the first two sentences of the sixth paragraph of section 32 of Law No. 84-53 of 26 January 1984 on statutory provisions relating to the regional civil service, as well as the third paragraph of section 20 of Law No. 86-33 of 9 January 1986 containing statutory provisions relating to the hospital public service, shall be replaced by the following provisions:
• The members representing the staff shall be elected by a two-ballot list system with proportional representation.
• In the first ballot the lists shall be presented by the representative civil servants’ trade union organizations. If no list is submitted by these organizations, or if the number of voters is below a quorum set by decree in the Council of State, a second ballot, for which lists may be presented by any civil servants’ trade union organization, shall be conducted within a time limit set by the same decree.
• For the implementation of the provisions of the preceding paragraph the following shall be regarded as being representative:
  1. 1 civil servants’ trade union organizations that are properly affiliated to a trade union association fulfilling the conditions set out in section 9bis of Law No. 83-634 of 13 July 1983 on the rights and obligations of civil servants; and
  2. 2 civil servants’ trade union organizations satisfying, within the framework of the election, the provisions of section L.133-2 of the Labour Code.
• Organizations affiliated to the same union shall not present concurrent lists at the same election. The conditions for the implementation of the present paragraph shall be set where necessary by a decree in the Council of State.
• Challenges to the admissibility of the lists submitted shall be brought before the competent administrative court within the three days following the deadline for submitting candidatures. The administrative court shall give its ruling in the 15 days following the submission of the appeal. The appeal shall not be suspensive.
• III. Section 15 of the aforementioned Law No. 84-16 of 11 January 1984 shall be completed by a paragraph formulated as follows:
• When, under the conditions set by a decree in the Council of State, a staff consultation is carried out to designate representatives of civil servants’ trade union organizations, only those organizations referred to in the fourth paragraph of section 14 shall be empowered to stand. If none of these organizations stand, or if the number of voters is below a quorum set by decree in the Council of State, a second consultation shall be held, within a time limit set by the same decree, in which any trade union organization may participate. The rules set out in the fifth and sixth paragraphs of section 14 are applicable to the consultations provided for in the present article.