Calls for review of trade union representativeness rules

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The statutory system governing the "representative" status of trade unions affords the major French union confederations a virtual monopoly in bargaining and representation. In May 2000, the CFDT union confederation, following the lead of CGT, came out in favour of an review of the criteria for union representativeness. It suggested that more importance should be attached to ballots among workers in legitimising union negotiators. The idea of breaking with the traditional French "rules assuming representativeness" for certain union organisations has met with strong reluctance.

In the French system of industrial relations, trade union organisations with nationally representative status enjoy certain privileges (FR9909104F). The individual unions affiliated to the five confederations with this status - CFDT, CFE-CGC, CFTC, CGT and CGT-FO- are exempt from having to prove their representativeness at sector and company level. These union organisations thus enjoy an indisputable presumption of representativeness at all levels, which enables them to: participate in major social institutions; negotiate sector-level or company agreements which are binding on all the employees covered by such agreements (even if they are the only union signing the agreement); organise workplace representative elections, in which their candidates enjoy a monopoly of candidates in the first round of voting; and appoint union delegates in companies. The other "independent" union organisations have to prove their representativeness within each sector and company.

The revival of collective bargaining following the adoption of the two 35-hour week laws of 1998 (FR9806113F) and 2000 (FR0001137F) has highlighted the issue of "minority agreements -" ie collective agreements signed by unions with only minor support among the workers concerned. Majority representative unions which have not signed an agreement reached by minority unions have a right of opposition, enabling them to challenge its implementation before the courts. However, very restrictive criteria govern this right.

CFDT proposals

Do the current union representativeness rules undermine rather than strengthen the legitimacy of French unions? This is the concern expressed by the CFDT leadership, which voted in early May 2000, by an overwhelming majority, in favour of revising the current system. Instead of automatically and "irrefutably" being presumed representative, the legitimacy of the five representative union confederations would, under this proposal, be more closely linked to ballots organised among the workforce.

CFDT, which was initially very cautious, now considers, given the low rate of French trade union membership, that current provisions governing unions' representative status foster minority agreements and "impede trade unions from being effective ... The rule making an agreement signed by a single union legally valid enables (...) employers to almost always be sure of finding one or more signatories." The representative status system has "come to the end of its tether" and it is now time that "the legitimacy of unions should be re-established with workers, to enable unions better to negotiate for them."

CFDT has suggested to the other union confederations that they discuss four proposals:

• for an agreement to be valid in the future, it must be signed by one or more unions with a score of at least 50% of employee votes at company-level workforce elections of employee representatives;

• a "representative status ballot" should be organised simultaneously in all companies in each sector. This ballot would elect union delegates with the authority to negotiate company-level agreements (they are currently appointed by unions) and would enable support for each union at both company and sector level to be measured;

• those unions not currently covered by the assumption of representative status should be able to field candidates in the first round of works council and workforce delegate elections;

• collective agreements should cease to apply indefinitely, so as to encourage renegotiation.

Contradictory debate between unions

Making electoral support a "full-fledged criterion in determining union representative status" had already been put forward by CGT following the conclusion in 1998 of an agreement on the 35-hour week in the metalworking industry, signed by unions considered to have minority status (FR9808129F). During discussions in autumn 1999 on the second 35-hour week law, which made a majority company-level agreement on the subject a condition of government financial assistance for working time reductions, the CGT general secretary, Bernard Thibault, came out in support of the majority principle. In an article in the Le Monde newspaper on 10 September 1999, Mr Thibault wrote that in his view the problem was that industrial tribunal (Conseils de prud'hommes) elections held every five years (FR9712185F) remain the only measure of the influence of each individual union: "How can one justify a union representation system that has meant that one union or another has continually held sway in some jointly-managed bodies for 30 years without any opportunity for employees to elect their representatives? (...) How can negotiations in the name of workers be credible when they are conducted by a union representative or an organisation that has not obtained widespread support from the workers they represent?" CGT called for a "very wide-ranging debate", within the trade union movement and at institutional level, to develop a "new approach to representative status", while respecting the principle of trade union pluralism.

While CGT shares "the philosophy" behind the new CFDT proposals, it does not support some of the union's practical suggestions. CGT is in favour of "direct employee consultation" if no majority agreement can be reached, but has some misgivings about the election of union delegates under universal suffrage and about one-round workplace elections, which would exclude the large numbers of non-unionised representatives, especially in small companies.

The unions that do not benefit from the presumption of representative status principle are among the most fervent advocates of a reform of the rules. For the National Confederation of Independent Unions (Union nationale des syndicats autonomes, UNSA), "making majority endorsement a condition for the validity of agreements, strengthening union legitimacy based on electoral support as well as allowing all legally recognised unions to field candidates in elections" are "major steps forward". The Group of 10 ("Groupe des dix") independent unions also welcomed CFDT's proposals, which could potentially foster "genuine pluralism and a strengthening of trade union freedom based on freedom of choice".

The other union confederations deemed nationally representative are reluctant, if not openly opposed to the CFDT proposals. CGT-FO fears a fragmentation of the union landscape, believing that the majority agreement principle would promote the development of minority unions, a trend which might be directly encouraged by employers. CGT-FO considers the timing of the debate to be inopportune and somewhat suspicious, occurring as it does almost simultaneously with the current negotiations over the "overhaul of industrial relations" between unions and the MEDEF employers' association (FR0002143F).

CFTC aggressively challenges the idea of repealing legislation which is based on the principles of the independence and sectoral and intersectoral solidarity of unions with representative status, and which "guarantees genuine pluralism without union fragmentation". In the opinion of CFE-CGC, CFDT's proposals are likely to result in "a split in the union movement" and unilaterally give employers the upper hand in the current negotiations between unions and employers. Those confederations opposed to the proposals are however, prepared to debate the strengthening of the majority unions' right to challenge so-called "minority" agreements.

While MEDEF representatives view CFDT's open discussion as healthy and positive, the government has taken a neutral stance. It sees the debate as internal to the trade union movement, whose pluralism is a traditional and defining factor in the French industrial relations scene.

Representative status and industrial tribunal elections

The withdrawal, in late May 2000, of a provision originally included in a bill on industrial tribunal elections has added a new factor to the debate on representative status. In the future, legislation will prohibit slates of candidates for election to industrial tribunals linked to political parties or organisations "advocating any form of discrimination". This indirectly targets extreme right-wing parties. The initial bill gave the five union confederations with representative status immunity from any possible challenge to their slates based on the discrimination criterion, which could, however, be used against any other union or organisation. This provision was challenged, in particular by UNSA, whose arguments eventually led to its withdrawal.

Commentary

The revival of collective bargaining on account of the implementation of the 35-hour week legislation makes the rules governing representative status a recurrent and undoubtedly long-lasting issue in the discussions between unions, employers and the government. The assumption of representative status must be compared with the genuine consensus which may develop or not develop, as the case may be, when trade unions negotiate collective agreements. In reality, both current practices and legal provisions provide mechanisms additional to the traditional criteria governing representative status. Workplace referenda are often held among employees to give more legitimacy to agreements negotiated at this level. The provisions contained in the second 35-hour week law clearly demonstrated the desire to use alternative ways - other than union signature alone - of validating negotiated agreements. The "majority" unions have acknowledged these changes and are now attempting actively to influence the debate. Changes to the representativeness rules are not likely to penalise them and could even increase their clout. However, the challenge of coming up with new rules which will be in keeping with trade union pluralism and will convince employees will not be a straightforward one. (Adelheid Hege, IRES)