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Following a second reading in France's National Assembly on 31 March, the law introducing a statutory working week of 35 hours should become law around the middle of May 1998. The discussion in the National Assembly gave rise to a detailed debate on the concept of actual work (travail effectif).
The bill on the reduction of the statutory working week from 39 to 35 hours (FR9803197N) was passed at second reading stage by the National Assembly on 31 March 1998. After its second reading in the Senate (upper house) and a meeting of the cross-party joint committee, the bill should become law in about the middle of May.
Until very recently, the debate on the reduction of the statutory working week to 35 hours had focussed on the expected benefits of the move in terms of new jobs. The fight against unemployment was indeed the justification for the 35-hour week being placed on the agenda of the tripartite conference on employment on 10 October 1997 (FR9710169F), then prioritised in the governmental and parliamentary agendas. However, the discussion in the National Assembly witnessed the appearance of new issues, especially after an initiative launched by a group of 300 labour inspector s (inspecteurs du travail- the civil servants responsible for verifying that laws and regulations relating to work are applied), who put forward a series of proposals that they passed on to left-wing groups in parliament, in order to provide, in their words, "a stronger basis for the implementation of the 35-hour week". A key issue in these recommendations related to "actual work".
The concept of of "actual work" (travail effectif) is currently defined in the Labour Code, with Article 212-4 stipulating that working time "refers to actual work, excluding the time necessary for changing and breaks, or periods of inactivity in industries and trades fixed by decree ".
Application of this Article, which dates back more than 50 years, is very complicated. The notion of "actual time worked" is different when applied to the calculation of pay, seniority, and paid holidays. The concept was simplified in Article 2 of the 1993 EU Directive on certain aspects of the organisation of working time (93/104/EC) which defines "working time" as "any period during which the worker is working, at the employer's disposal and carrying out his activity and duties, in accordance with national laws and/or practice".
The Cour de Cassation, France's highest court of appeal, has interpreted French national practice in different ways. In rulings in March and December 1993, the court indicated that "actual working time" was "the time when the employee is present in the workplace and at the employer's disposal". However, on 28 December 1997, it ruled that actual work exists "when the employee remains constantly at the employer's disposal" . However, being constantly at the employer's disposal and being at the employer's disposal are not the same thing:
The labour inspectors who signed the proposals on working time met left-wing parliamentary groups, and some of their proposals, especially those concerning "actual work", were taken into consideration. Following its adoption at first reading in the National Assembly, the bill stipulated, in a rewritten Article 212-7 of the Labour Code, that "actual working time" should be taken to mean "a period during which the employee is at the employer's disposal". The Senate amended the bill by stipulating that "actual working time" was that during which "the employee is at work at the employer's disposal and exercising his or her duties and functions".
During the bill's second reading, the National Assembly's social committee initially amended the Senate's text, considering that"actual working time" is "the time during which the employee is constantly at the employer's disposal".
This "U-turn" was criticised by Ecologist and Communist deputies and some of their Socialist counterparts. An amendment proposed by Jean-Yves Cochet, a Green deputy, sought to return to the bill's original wording. After many debates within the left-wing governing coalition, this was the proposal eventually adopted. Employers then protested vehemently, fearing that this definition of "actual work" will also be extended to hours when employees are on stand-by. In a meeting with Prime Minister Lionel Jospin on 30 March, Ernest-Antoine Seillière, the president of the CNPF employers' confederation, stated that "businesses cannot live with this amendment, which can do nothing but paralyse negotiations." Moreover, Martine Aubry, the Minister for Employment and Solidarity, would have liked the bill to have been modified at its third reading. She thus stated, as the bill was passed on 31 March: "I am sure that we will come to an agreement with those government coalition deputies who want to make progress for the benefit of employees by taking case law into account, but do not want to cause problems for businesses."
Behind this ostensibly technical or semantic debate, a basic question on the implementation of the reduction of the working week to 35 hours was raised: the intensification of workloads in businesses. By formulating these proposals, the Government put forward the terms of a deal to employers: the reduction of working time to create more jobs, to be traded against greater flexibility within businesses and a reorganisation of work enabling competitiveness to be improved. To achieve greater efficiency, company-level negotiations should enable work to be reorganised by taking into account the needs of both employers and employees. However, some fear that this trade-off will be unequal, considering the difficulties experienced by trade unions seeking to establish themselves in the workplace, and are anxious that the changes in the organisation of work will not be accomplished in a fashion detrimental to employees - hence the willingness to guarantee legally a number of channels of appeal against possible abuses. (Alexandre Bilous, IRES)