Social modernisation bill seeks to strengthen right to work

Download article in original language : FR0101121FFR.DOC

In January 2001, the French parliament approved at first reading a government bill on "social modernisation". Against the backdrop of an improved economy and a fall in unemployment, the government is seeking to to promote stable employment by limiting precarious jobs and redundancies and fostering the continuous adaptation of workers' skills.

A "social modernisation" bill was passed by parliament at first reading on 11 January 2001, having been announced by the government 18 months previously as part of its overall reform policy. The bill contains a variety of social measures of varying scope. The core of the legislation - which according to the Minister of Employment and Solidarity, Elisabeth Guigou, should "strengthen the right to work" - are provisions relating to redundancies, precarious employment and vocational training. The Minister considers that, given the return to a situation of economic growth, it is "time to send a clear message to companies that the era of limiting the number of permanent and stable new jobs is over". While the wording of the legislation was supported in parliament by the deputies of the governing left-wing parties, it was viewed as a "watered down" improvement by some, especially Communist Party deputies, who succeeded in amending the sections of the bill dealing with bullying at work and employee shareholding.

The main provisions of the bill are set out below.

Improved redundancy prevention

The government wants to make redundancy (licenciement économique) an employer's last resort. Under the terms of the bill, before being able to table a redundancy plan (plan social), employers must have convened negotiations or reached an agreement on introducing the 35-hour working week. This policy, which is geared to addressing inappropriate and unfair redundancies, draws on the "Michelin amendment to the recent 35-hour week legislation (FR0001137F)," introduced after the tyre manufacturing multinational unveiled its plans, in September 1999, to lay off 7,500 workers, despite recent excellent profit results. (FR9910113F). In addition, employers contemplating redundancies will have to have reduced "structural overtime". If the company fails to meet these requirements, the courts (juge des référés, whose decisions are made within hours of the filing of a complaint and take effect immediately), may be called upon provisionally to block the redundancy plan. The employer will also be required to propose redeployment to alternative jobs requiring equivalent skills within the company or group. The works council must also be informed prior to any public announcement of redundancies.

Tackling precarious employment

In an attempt to restrict the use of fixed-term contracts, the current "precarious employment bonus" paid to fixed-term employees at the end of their contract is to be increased from 6% to 10% of gross salary, in line with that paid to temporary agency workers. The period which must elapse between the use of fixed-term contracts for the same position will also be made tougher. It will be calculated in terms of working instead of calendar days. Furthermore, for fixed-term contracts lasting under two weeks, the period between contracts will be set at no less than a week. This is designed to end abuse of the system. At present, some companies may employ fixed-term workers from Monday to Thursday and then rehire them the following Monday. The weekend is a sufficient gap to comply with the obligatory period between contracts, currently set at one-third of the duration of the fixed-term contract. This will no longer be possible.

Validation of skills

As a longer-term measure, the bill will implement aspects of the 1999 white paper on vocational training (FR9904172F), with the aim of promoting worker mobility and employability through support for "life-long learning". The bill strengthen the 1992 skills validation scheme. Any employee who can prove three years' experience (previously five) will now be able to have their knowledge and skills validated by a diploma, certificate or vocational or higher education degree. Both paid and voluntary work may be included in calculating this experience requirement. Experience will be evaluated by a "supreme jury" including professionals, whose decisions are final. A national committee responsible for developing a diploma and degree registry is to be set up. This committee will include the social partners. Funding for apprenticeships has also been reviewed to improve transparency and provide a greater budgetary balance between the various apprenticeship centres, which currently experience great disparities in funding. Budgetary decisions will be taken at regional level.

Moral harassment

The bill will add sections covering "moral harassment" (essentially bullying) to the Labour Code. For the first time, moral harassment will be officially defined as: "the behaviour (…) of any person abusing the authority conferred upon him or her by his or her position, having (...) a negative effect on the dignity (of the employee) and creating humiliating or degrading working conditions". Victims of, and witnesses to, such harassment are to be protected, especially in terms of termination of employment contract. Disciplinary action may be taken against the perpetrators of moral harassment. The provisions are designed to boost prevention within companies. Workers' representatives will have increased powers in this area

Employee shareholding

Those companies whose workforces own at least 3% of their capital will be required to allow representatives of worker-shareholders to sit on their board.

Unions hail significant progress

Overall, the trade unions are satisfied with the proposed legislation, though some feel that it could have gone further in some areas.

On the issue of redundancies, CFDT applauds the fact that "companies will be required to follow standards and reduce working time and overtime before considering a redundancy plan." However, like CGT-FO, it questions "the relevance of this rather belated legislation passed after most companies have already moved over to the 35-hour working week". CFTC points out that "no provision has yet been made for comfort-level redundancy plans", which involve non-emergency economic redundancies.

Both CFDT and CGT-FO have stated that the measures to tackle the inappropriate use of fixed-term employment contracts are insufficient insofar as they fail genuinely to guarantee sustained employment. What is really required, in the view of these unions, is an increase in training opportunities for workers in precarious jobs, since these workers are often in these types of jobs because they lack qualifications. CFDT maintains that bringing "the precarious employment bonus for workers in unstable jobs into line with that paid to workers employed through employment agencies might encourage employers to make even greater use of employment agencies as sources of labour. This type of employment is even more precarious."

All the trade unions see validation of vocational experience as a major step forward. CGT points out that "for the first time, it will be possible to obtain a diploma on the basis of vocational and also social experience. However, the terms and conditions for the latter remain to be defined." UNSA sees this move as a "miniature cultural revolution, since formal education credentials will no longer be a must". This union also maintains that "an overhaul of the funding arrangements for apprenticeships and vocational training was long overdue. However, a lot of ground remains to be covered in this area."

Lastly, the trade unions consider that recognition of moral harassment in the workplace was necessary, but that a genuine definition and measures remain to be developed. They regret that they were not consulted on this issue.

Commentary

The bill's measures are aimed at improving the management and planning of employment in companies, in terms of both staffing levels and skills. By encouraging companies to make less use of "stop-start" management, these measures promote negotiation on staffing levels between the social partners within the company. However, the wording of the legislation is relatively traditional and does not usher in more innovative measures such as support for mobility and the creation of career paths within regional labour markets by fostering cooperation between companies and local institutions. (Marie Raveyre, IRES)