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The French Constitution guarantees freedom of association rights, including the rights to create and join trade unions and to strike. The 1958 Constitution also establishes that Parliament has the job of creating statutes to govern labour law and trade union law. Const., Art. 34. Today, there are many labour laws that touch on freedom of association rights, but the bulk of them focus on collective bargaining and workplace representation. French government ministries and courts also play an interventionist role in crafting, implementing and interpreting French labour law. France ratified ILO Conventions Nos. 87 and 98 in 1951.

Although freedom of association rights are guaranteed by law, French unions have suffered sagging membership levels, a slide in union density and an increasing loss of influence. A 2003 estimate of union members in France ranged from about 2 - 2.3 million workers. The rate of union density rate is hovering about 8%. Since 2000, these indicators appear to have stabilized. While union density is at the bottom in Europe, France has an extraordinarily high rate of collective bargaining coverage (about 90%). The high coverage rate stems from the fact that national-level collective bargaining agreements may be automatically extended to cover all workers in that sector, whether or not they are union members. Paradoxically, state-created extension rights have been one of the key factors that has led to a lack of interest in workers paying for union membership and decreased the incentive for French unions to organize new workers, a trend that has been described as a “state-created weakness.”

Declining membership levels also have, among other issues, undermined the level of influence unions can bring to bear on employers and have exacerbated internal funding problems. France has granted special “representative” status to five union confederations: Confédération de Travail (CGT), Confédération Générale du Travail-Force Ouvrière (CGT-FO), Confédération Française des Travailleurs Chrétiens (CFTC), French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) and the Confédération Française de l'Encadrement-Confédération Générale des Cadres (CFE-CGC). This representative status confers a key role for union confederations to collectively bargain on all levels and it also allows them to appoint local union representatives. As of 2005, 63% of companies with 50 or more workers had at least one such union representative. Moreover, French unions can and still do freely exercise the right to strike, as shown by a mobilization of more than one million striking workers against proposed labour legislation in March 2006.

France recently bolstered freedom of association rights with a new law designed to enhance the level of protection against union-based discrimination. However, there also have been heated political debates about increasing the trend of decentralization in labour relations. The French government passed a new law in 2004 that attempts to promote decentralized bargaining, by increasing the priority of company-level agreements to deviate from higher-level agreements and by allowing bargaining at workplaces without union representation.

RIGHT TO FORM AND JOIN TRADE UNIONS

The Preamble to the 1946 French Constitution (which is cited in 1958 Constitution) states that: “Every individual shall be allowed to defend his rights and interests by trade unionist activities and to join the trade union of his choice.” The Constitutional Court has affirmed that the Preamble has constitutional effect and the Labour Code reinforces this constitutional right to organize and join unions freely.

Workers are free to form unions and employers may not exert “pressure” on any union. A union must defend the “rights and interests” of its members, who must be workers in the same or similar profession. The sole formality is that a union must register its internal rules and the names of its officers, but it has unfettered freedom to organize its rules and choose its officers. No statute requires authorization or fee payment by the government. Unions also have the right to form confederations. However, unions cannot rely on a check-off system to pay union dues, which is a system that might increase union membership.

Both private and public sector workers are free to join unions of their choice. However, the military and police are not allowed to form unions. Foreigners can join unions and become officers or representatives. Workers also have negative freedom of association rights to not join or withdraw from a union. Closed shops are illegal, but the Committee of Social Rights maintains that they still exist in the printing industry. Any agreement that provides benefits solely for union members is void.

France has an elaborate, institutionalized statutory scheme for worker representation. Four bodies can represent workers in a company: union branches and delegates; employee delegates; work council members; and health and safety committees (as briefly described below). While the government does not have complete statistical data about their numbers, it has estimated that there are more than 40,000 union delegates, nearly 300,000 employee delegates, and between 25,000 to 30,000 works councils with more than 100,000 elected members and an equivalent number of health and safety committees. As of 2005, 77% of companies with 20 workers or more had worker representatives, according to a 2007 government study. But a 1998 government study noted that the mere presence of statutorily-mandated representatives does not necessarily guarantee effective worker representation.

“Representative” trade unions may form a union branch in any size company. They also each may appoint their own delegates in a company with 50 or more employees to represent the union at the plant level. The number of delegates ranges from one delegate for 50-99 workers to five delegates for 10,000 or more workers. If a company has less than 50 workers, then a staff delegate can be designated. Company size directly correlates to the presence of union representatives. A 2007 government study found that, as of 2005, 38% of companies had a union representative. A closer look at the data reveals that in companies with less than 50 workers that rate fell to 23% as compared to 97% in companies with more than 500 workers.

Delegates receive ten to 20 hours paid time off per month to perform duties (primarily collective bargaining) depending on the company size. A union delegate can also hold different representative posts and attend works council meetings. Companies must provide union delegates with work rooms and meeting space, bulletin boards, free access to the worksite, and allow free distribution of union information. In a recent advance, as of 2004, if allowed by agreement, unions can use either company e-mail or intranet to communicate with workers. Companies also must take steps to ensure freedom of union expression at the worksite. Trade unions representing public service workers have the same general representation rights at the workplace.  

Employee delegates are elected every four years in companies with 11 or more employees. Their duties include helping with worker complaints and ensuring collective agreements and the Labour Code are implemented. For the first round of elections, unions can pick all of the delegate candidates. The number of delegates ranges in size from one representative and one deputy in companies with 11 to 25 employees to ten representatives and ten deputies in companies with more than 1,000 workers. Additional representatives are added for every additional 250 workers. In 2005, the ground rules were changed to exclude more workers (i.e., anyone under the age of 26) from counting toward the mandatory-minimum levels needed to hold elections for employee delegates and works council members.

Works councils include elected representatives and are mandatory in companies with 50 or more workers (but not always created). Like employee delegate elections, unions have the right to monopolize candidates for the first electoral ballot. Works councils range in size from three members and three deputies (for 50 - 74 workers) to a maximum of fifteen members and deputies each (for 10,000 or more workers). They address a variety of economic, cultural and social issues (but unlike Germany, do not have co-determination rights). In large companies, a group committee may be created, with up to 30 worker delegates drawn from works councils and appointed by unions. Works councils are provided, among other things, with offices, funding, and access to company premises. Representatives have the right to up to 20 hours per month paid time off to perform their duties.

Voter turn-out for works council elections, held every four years, has been steadily declining since the 1960s, but still consists of about 66% of the eligible voting workers. In 2004, about 22% of the votes were cast for non-union candidates, roughly the same ratio as received by the two highest union recipients, CGT and CFDT. However, in larger companies, more workers vote for union candidates. In recent elections, in companies with 100 or fewer employees, non-union candidates have been winning more than 50% of the votes.

Finally, in companies with 50 or more workers, a health and safety committee must be created. Members are entitled to between two to 20 hours paid time off per month (depending on the size of the company) to perform their duties.

RIGHT TO COLLECTIVE BARGAINING

Collective bargaining is not cited in the Constitution, but workers have a statutory guarantee to engage in bargaining. Since 1982, employers are required to negotiate with representative unions about specific terms and conditions of employment including, among other topics, wages, working time and the organization of work. There is no requirement to reach an agreement on these issues.

Once signed, collective agreements are treated as binding contracts on the signatories. Importantly, these agreements bind all applicable workers, even if they are not union members. Contracts even bind any employer who withdraws from the confederation that signed the agreement. Employers cannot take steps to “impair” an agreement.” Of course, any agreement must not violate the Constitution’s freedom of association rights. In practice, collective agreements can be concluded at all levels in France, including the local, regional, sectoral and national. There are no complete data on the total number of collective agreements in force. However in 2005, more than 19,000 contacts were signed at the company level.

Two critical features frame the collective bargaining landscape in France: extension and representativeness. Upon the request of one of the signing parties, the Labour Minister may extend collective agreements beyond the scope of the signatories to include a sector or region – even including companies that are not members of an employers’ association. Extension requests have been on the rise since 1998 and jumped from 789 to 930 from 2004 to 2005. The National Commission for Collective Bargaining, made up of members appointed by the social partners, monitors and approves extensions. One key aspect of any extension is the requirement a contract must guarantee workers’ “rights of association” and “freedom of opinion” and protect the role of union delegates. While extension has provided more coverage for unrepresented workers, legal experts state that it also has tended to diminish unions’ influence.

The other foundation of collective bargaining rests on the statutory process of granting special rights to confederations or unions that have been designated as “representative unions” at local, sectoral, regional and national levels. This designation has critical legal consequences for implementing freedom of association rights. Two methods exist for establishing representativeness. In 1966, the government granted national-level rights to five union confederations: CGT, CGT-FO, CFDT, CFDT and CGC. In 1982, the workplace rights of these confederations were extended so that any union affiliated with them is also presumed to be “representative.” These confederations are deemed as representative even if they only have one union member at a worksite.

A union not linked to these five confederations can still prove its representativeness. It must satisfy four key statutory criteria: membership levels, independence, amount of dues, and experience of the union. Courts also consider the criteria of “influence” when judging representativeness (see Cass. Soc., 3 December 2002, No. 01-60.729). Similar criteria are used to assess the representativeness of public sector unions. There is an administrative process, but recognition decisions on the status of unions also are made by the civil Court of Cassation and administrative Conseil d’Etat. The process has been criticized by smaller unions as unfair and, in 2001, the UN’s Committee on Economic, Social and Cultural Rights urged France to take steps to ensure that these criteria “do not impede the right of [smaller and newer] unions to participate freely” in collective bargaining. A French investigatory commission recently recommended changes to the process. But the COE’s Committee of Social Rights concluded that the representative process did not violate the European Social Charter, primarily because it was based on objective, pre-established criteria and subject to legal review (see Syndicat Occitan d’Éducation v. France, Complaint No. 23/2003, Decision of 7 September 2004).

Representative unions have different rights depending on the level of their status. The foremost privilege for representative unions is the right to sign national, sector and company-level collective agreements and to request their extension. Conversely, such unions now have power to oppose proposed collective agreements. Representative status also confers the right to appoint union members as national, regional and (as noted above) local union delegates. For instance, at the national and regional levels, members represent unions on a number of government agencies and commissions with key labour relations roles, including the labour courts, economic, training and safety and health commissions, and the National Commission for Collective Bargaining. (Company-level rights of representative unions are noted above.) They also receive state funding for training and research purposes.

Aside from rights to represent workers and extend contracts, the legal regime of collective bargaining also has undergone significant changes. In May 2004, the government passed a law designed to promote the independence of company-level negotiations and more decentralized bargaining, even in companies where there is no union presence. There are several implications from a freedom of association standpoint. First, a potentially major change allows companies to negotiate with elected worker representatives, not representative unions. If no trade union is present, a company still may negotiate an agreement, either with an elected worker representative or, if there is no such representative, then an employee appointed by a national union. Any such agreements must be approved by either a national commission or the company workers. By way of background, on 6 November 1996, the Constitutional Court ruled that the Constitutionally-guaranteed right to organize did not allow trade unions to monopolize collective bargaining rights.

Second, the law provides room for local collective agreements to deviate from higher-level agreements (even if the deviation is less favourable to workers) under certain conditions (two of which require no change in minimum salaries or job classifications) and as long as a deviation is not forbidden by the applicable sectoral agreement.

Third, a new procedure requires that a collective agreement must be signed by, or not opposed by, a majority of unions (according to election vote totals). Prior to the change in the law, as a general matter, a lone union could independently sign an agreement that could bind all workers. While there is the possibility that this law may encourage union cooperation, to date, unions have rarely used their “opposition” power.

RIGHT TO STRIKE

The right to strike in France is guaranteed in the Preamble to the 1946 Constitution (cited in 1958) which states that: “The right to strike may be exercised within the framework of the laws that regulate it.” The Labour Code also protects the right to strike. Individual (private sector) workers are granted the right to strike and protected from dismissal for exercising that right. Workers do not need any union authorization to conduct a strike. For example, in 2004, workers initiated 22% of the strikes. However, a worker cannot stage a solo strike (unless it is a strike involving a national collective action).

No statute details the right to strike in the private sector. Instead, court cases have helped to shape it. Unlike the intense debate about collective bargaining reform, there has not been any revision of the laws on strikes in more than twenty years. A legal strike requires an affirmative decision by workers to strike, collective action to stop work, and it must be taken to support legal and achievable work-related demands. A union should set forth its demands, but it need not give prior notice of a strike and a collective agreement cannot attempt to do so (see Cass. Soc., 7 June 1995, No. 93-46.448). Strikes can be of unlimited length and can cover a wide variety of issues affecting workers, such as collective bargaining, health and safety, discipline, dismissal, and employment conditions. Collective agreements cannot restrict the right to strike with a “peace” agreement (cf. Germany). Workers can use boycotts, but slow-down and sit-in strikes and picketing are barred. As a general matter, strikes with solely a political agenda are barred. Sympathy strikes may be legal if the scope of the strike is limited to work-related issues or common interests involving the same company or companies. Strikers’ jobs are protected and a strike suspends but does not break a worker’s contract (unless there is gross negligence).

The use of lockouts is restricted and rarely used. A company may attempt to use it defensively, for instance, in reaction to an illegal strike. Prior to the use of a lockout, an employer must try to resolve the dispute.  Companies cannot hire replacement workers.

Existing statistical data (although flawed) shows that trade unions still frequently use strikes, especially in the public sector and in more unionized sectors.  Overall, the frequency and scope of strikes has declined since the 1970s and 1980s, but they still are plentiful and can have a strong impact, especially when they occur in essential services. A 2007 government study found that the number of companies with more than 20 workers affected by at least one collective action rose from 21% to 30% between 1996-98 and 2002-04. Although public sector workers are more restricted in their right to strike, in recent years they have accounted for the majority of the workdays lost to strikes. From 2000 to 2005, public sector workers have averaged 1,356,610 lost workdays per year (peaking at 3.7 million days in 2003). And transport workers lost more than 500,000 workdays due to strikes in 2003.

Public sector workers have a restricted right to strike. In the public sector, a representative union must provide at least five days notice of a strike, including details about the reasons for the strike, when it will start, where it will occur, and how long it will last. Unions also must be ready to negotiate during the notice period. The use of rotating strikes is prohibited. Certain workers are prohibited from striking, including members of the military and police, judges and prison workers. Other occupations (such as flight controllers and broadcasters) have limits on the right to strike and the Conseil d’Etat has ruled that unions in these sectors may have to provide minimum services during a public sector strike.

The COE’s Committee of Social Rights maintains that limiting the right to initiate a strike in the public sector to the most representative national unions restricts the right to strike and violates Art. 6 of the European Social Charter. The French government maintains that the criterion is a more of a formality than a restriction, since unions can establish representativeness or can collaborate with a representative union. It points out that the public sector has an enormous number of lost workdays due to strikes each year. The Committee also maintains that the statute deducting one day of wages for public servants for strikes that last for less than one day is a disproportionate penalty that violates Art. 6.

PROTECTION OF TRADE UNION MEMBERS

France has strong civil and criminal protections for workers in general, and union delegates in particular, against discrimination because of their union status. Companies are barred from discriminating against any person, including both job applicants and workers, because of their union status. Workers who legally exercise their right to strike are specifically protected against discrimination or dismissal. Any such discriminatory act is null and void. The Penal Code also bars discrimination on the basis of trade union activities. Discrimination against public sector employees also is barred on the basis of trade union activities.

Workers are protected against retaliation for having participated in a proceeding or for having raised a claim of discrimination.

All four types of worker representatives – and workers who requested an election or election candidates – enjoy strong procedural protections against dismissal. Former representatives and candidates are protected for six months while union representatives receive protection for one year. A labour inspector must approve all proposed representative dismissals and must look for discriminatory intent. Also, employers usually must give notice to the works council. If a request is denied, any work suspension is void. Civil and criminal sanctions (including up to one year in prison for first offenses and fines of up to € 3,750) are available for discriminatory removal of a union or worker representative, for any interference with a works council or for discrimination against a union or its representatives.

Despite these procedural guarantees, some unions have complained that the approval rate (about 85%) for the approximately 10,000 to 12,000 yearly requests for dismissal (most for economic reasons) is too high. However, the rate of approval is not nearly as high for proposed firings of only union representatives for disciplinary reasons. In 2004, there were 1,705 discipline-related requests to fire worker representatives (up from an average of about 1,200 proposed firings from 1998-2002). The overall rate of approval for these proposed firings was 64% in 2004, much lower than for economic reasons. Likewise, the approval rate for firings of union representatives is notably lower than for non-union representatives.

In addition to the specific protection offered by anti-discrimination statutes, the Labour Code protects all workers from dismissal unless the employer has proof of a real and serious cause. Union members are protected against discriminatory dismissal, even during any probationary period.

Among other procedural safeguards, employers must provide written notice (of at least five working days) of a dismissal and meet with the affected worker to explain its decision. Failure to do so may result in an award of one month of wages as damages.

A private sector worker may file a discrimination case in civil court (generally in the labour court known as the Conseil Prud’hommes) or criminal court. Civil servants file claims in administrative courts. Union representatives in both the public and private sector may raise discrimination claims for an applicant or employee (as long as the complainant is informed in writing and provides consent within a set time).

Discrimination or retaliation (e.g., firing striking workers) that results in a worker’s dismissal is null and void. Any such victimized worker is entitled to reinstatement and specified statutory damages, but not punitive damages. In companies with at least eleven workers, if a worker has at least two years of service and does not want to return, then he or she is eligible for an additional award of not less than six months’ pay. If found liable, a company must repay unemployment benefits.

In cases involving union-based discrimination, courts now must apply a shifting burden of proof. If a claimant can establish a prima facie case of discrimination, then the defendant bears the burden of justifying its conduct. By comparison, in administrative court cases, judges bear the burden of investigation. As union members have pursued their legal rights, civil courts have recognized that victims have the right to pursue evidence of discrimination held by employers. However, according to some legal practioners, it is still “very difficult” to obtain such evidence and its production runs counter to the traditions of French civil practice and procedure.

A worker also may file a criminal complaint. Penalties for discrimination in employment (including hiring, firing or discipline), range up to three years in prison and a € 45,000 fine. Retaliation against a witness or victim may result in these same penalties. Use of threats to obstruct the exercise of the freedom of “labour” or “association” may be punished by one year in prison and a fine of € 15,000. A person convicted of discrimination also may face additional penalties, such as closure of his or her business. Penalties for discrimination are even stiffer if committed by a person holding public authority or in the public service and may range up to five years in prison and a € 75,000 fine. A company found guilty of discrimination may face wide-ranging penalties including but not limited to a fine up to € 1 million and closure of the business.

While these criminal sanctions are broad and may have a deterrent effect, as a practical matter, criminal cases bear a higher burden of proof, most criminal cases are dismissed and, as a result, these statutory penalties are used less frequently in discrimination cases. Thus, there are only a handful of criminal convictions for discrimination each year in France. Prison sentences are rare, and, when meted out, are of short duration and suspended. Fines average about € 2,000 to 3,000, far less than the maximum amounts allowed. Likewise, in practice, businesses are not shut down.

FRENCH PROTECTION FOR FREEDOM OF ASSOCIATION RIGHTS

France relies on a multi-layered system of workplace representatives, government agencies and courts to help protect freedom of association rights. Unions play an important role at each level. In the workplace, employee representatives – including union delegates, workers’ representatives, works council members, and health and safety committee members – form an ongoing effort to craft new collective agreements, monitor compliance, review company information and implement laws and agreements. Work representatives may file emergency complaints with a Labour Court if a worker’s “rights or individual liberties” are violated. The Court can issue interim rulings and prescribe penalties. Also,  representatives can request that the Inspection Agency conduct an inspection.

The Inspection Agency has broad duties to monitor virtually all labour laws at all worksites. (estimated to be more than 1.5 million worksites with 15 million workers). Inspectors have wide-ranging powers, including the righ to inspect, obtain documents, take statements, issue reports, and refer cases to criminal prosecutors. The agency conducted 277,055 visits in 2004 with about 1,300 inspectors. The government plans to recruit 700 new inspectors by 2010.

In 2004, France created a new anti-discrimination agency, HALDE, with powers to fight all types of discrimination. Any person, including a union or a member, can file a complaint. HALDE has authority to investigate and make recommendations, but no enforcement power. It can transfer cases to court. Of 1,822 claims filed with HALDE in 2005, only 4.6% dealt with union-based discrimination.

As noted above, workers may either file civil, criminal or administrative court cases, depending on the nature of the claim and whether it is against a private or public sector employer. The Constitutional Council assesses the constitutionality of new legislation. Unions can and do represent members in court. There are no court costs to start a civil case in France, but a losing party may have to pay certain litigation costs.

As a general matter, Labour Courts handle private sector workers’ individual disputes. Claims against the government proceed in administrative courts, the highest of which is the Conseil d’Etat. In 2004, 164,392 cases (most about dismissals) were filed at the 271 Labour Courts. Conciliation is required in every Labour Court case.   In 2004, the average time to a case was more than one year. These courts are not staffed by judges, but by 14,610 counselors (split between employers and workers) who are elected every five years. Labour Courts have become institutionalized, but voter turnout for electing counselors is on the wane, falling from 63% in 1979 to 33% in 2002. If damages exceed € 4,000 (Art. D. 517-1), then workers may appeal an initial decision to one of the 35 Courts of Appeal and finally to the Court of Cassation.

Labour Courts do not handle collective disputes, which may be filed in the Tribunaux de Grande Instance or the Tribunaux d’Instance (which hears workers’ representative disputes). At the outset, the parties may voluntarily use conciliation, mediation or arbitration, as offered by the National or Regional Conciliation Commissions (staffed by union and employer representatives). In practice, the parties employers rely on direct negotiations and the aide of labour inspectors. The use of conciliation and mediation to solve disputes has dropped during the past six years. Unions have authority to sue on behalf of their members for performance or damages to enforce agreements or to challenge practices that cause damage to the collective interest of their trade.

Analysis provided by Philip Simon, OSCE/ODIHR consultant.

Posted: April 2007

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