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In January 2004, the French parliament is debating a draft law on reforming the rules governing collective bargaining, submitted by the government. The proposals include giving company-level collective agreements precedence over sectoral agreements in many circumstances. Employers' organisations have largely welcomed the reform, but the trade unions are all opposed, though not always for the same reasons.
A draft law on 'lifelong learning and social dialogue', introduced by the Minister for Social Affairs, François Fillon, is being debated in parliament in early 2004. The second chapter of the draft law, which provides for a radical reform of the rules governing collective bargaining (FR0311101N), is unlikely to be subject to anything more than marginal amendments to the original wording during its passage through parliament.
The draft legislation is based partly on a 'common position' on collective bargaining reform agreed on 16 July 2001 by employers’ organisations and four trade union confederations - the French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT), the General Confederation of Professional and Managerial Staff-French Confederation of Professional and Managerial Staff (Confédération française de l'encadrement-Confédération générale des cadres, CFE-CGC), the French Christian Workers’ Confederation (Confédération française des travailleurs chrétiens, CFTC) and the General Confederation of Labour-Force Ouvrière (Confédération générale du travail-Force Ouvrière, CGT-FO) (FR0108163F). However, some proposals go beyond the provisions of this deal.
The key changes set out in the proposed legislation are:
While employers’ organisations have generally given their approval to the changes, all the trade unions, deploying different arguments and qualifications, are against the entire reform or part of it. While the unions have all criticised the new possibility for company-level agreements to depart from the provisions of sector-level accords, differences have emerged in relation to the reform’s other main component, the method for concluding agreements.
Among employers' organisations, it is especially the Movement of French Enterprises (Mouvement des entreprises de France, MEDEF) that has made its response to the reform public, with the other two central associations -the General Confederation of Small and Medium-sized Enterprises (Confédération générale des petites et moyennes entreprises, CGPME) and the Craftwork Employers' Association (Union professionnelle artisanale, UPA) - remaining more discreet.
The initial version of the legislation presented by the Minister at the October 2003 meeting of the National Committee on Collective Bargaining (Commission nationale de la négociation collective) had been subject to stringent criticism from MEDEF, which deemed it too timid in its attempt to overturn the systematic precedence given to collective agreements reached at higher levels. The Prime Minister’s intervention on this issue tipped the balance in the employers’ favour, and the final version was warmly welcomed by MEDEF. It provides that, with the exception of particular fields in which sector-level agreements will still take precedence, company-level bargaining can deviate from the provisions of future sector-level agreements unless the latter expressly forbid it.
The MEDEF however, identified two gaps in the draft law:
It is the new predominance afforded to company-level bargaining that has drawn most of the trade unions’ fire: 'the government is making the choice to decide those topics not eligible for exemption [from the general rule that higher-level agreements take precedence over lower ones]. It is thus making exemption into the rule,' according to Maryse Dumas, the national secretary of the General Confederation of Labour (Confédération générale du travail, CGT).
The challenge to the principle of favourability to the employee, which states that a collective agreement cannot set out provisions less favourable to the employee than those set at higher levels, is seen as dangerous by all the unions. They accuse the government of seeking to empty both the Labour Code and national agreements of their content. 'The government is seeking to reduce the entire system of bargaining to company level, which is just what MEDEF wanted to accomplish with its industrial relations overhaul initiative' (FR0002143F) (according to Michelle Biaggi, the CGT-FO federal secretary) - a move that the trade unions rejected in the social partners' 2001 common position. The power relationship is seen as much less favourable to the employees at company level, and this is why 'sector-level negotiation must remain the 'pivotal point' where possible exemptions at company level are negotiated', according to CFDT.
The unions are particularly concerned that placing limits on sectoral bargaining would worsen working and employment conditions for employees of small and medium-sized enterprises (SMEs). 'Company-level bargaining, unfortunately, spells fewer benefits for employees as union delegates are often not available in every firm, especially small and medium-sized businesses,' in the view of Jacques Voisin, the chair of CFTC. Even when there are trade union delegates in an SME, 'it leaves the door open to pressure being exerted and second-rate agreements', according to Jean-Luc Cazettes, the chair of CFE-CGC. The unions see a link between the draft law and the proposals contained in a new report on the simplification of the Labour Code (known as the Virville report), commissioned by the Minister of Labour and published on 15 January 2004. 'Eventually, if this bill becomes law, the only thing employees will have to protect them are the most basic provisions of labour law, which as it happens are also going to be reformed soon, and it seems very likely that this will be in a form that suits MEDEF,' stated Mr Voisin of CFTC.
On the issue of the rules for concluding collective agreements contained in the draft law, the representative trade union confederations are divided. CFTC, CFE-CGC and CGT-FO have dismissed the proposals on the grounds that they go beyond the social partners' 2001 common position. CFDT and CGT, on the other hand, argue that the new scheme does not go far enough.
The common position provided that national agreements would come into force only if the numerical majority of trade unions with representative status did not use their right of opposition. The government plan also opens up the possibility for sectors to put in place a 'majority rule' for concluding industry-wide agreements - ie requiring that agreements be signed by unions representing a majority of the workers concerned. The criteria for making company-level agreements valid are identical in both the common position and the draft law, in that sector-level agreements may opt for the majority rule (ie the agreement is valid if signed by unions representing a majority of workers concerned) or the right of opposition rule (ie the agreement is valid if a numerical majority of unions do not oppose it). However, if there is no sector-level agreement on the issue, the draft law provides that the right of opposition rule applies, whereas in these circumstances the common position retained the current rule that an agreement is valid as long as at least one representative union signs it (FR9909104F). It is the extension of the majority principle to all contexts that CFE-CGC and CFTC oppose: 'the bill changes everything at once without allowing us to step back and take stock of the situation', according to CFE-CGC. CGT-FO maintains that 'the necessity for a majority agreement stems directly from the possibility of an agreement deviating from a higher-level agreement: an agreement that does not deviate from a higher-level agreement, whether or not it is backed by a majority, is always in the employees’ interests.'
CFDT and CGT, however, have commented favourably on the proposed change in bargaining rules, which they believe may bolster the legitimacy of both agreements and actors. However, they are critical of the fact that the draft law prioritises the right of opposition, which will become the rule if there is no agreement on the procedure to apply, rather than a commitment to a majority decision. 'Prioritising the right of opposition encourages organisations that never sign up to agreements but still reap their rewards', claims CFDT. In a petition it has launched in support of workplace democracy, CGT demands 'the establishment of the principle of majority agreement at every level of bargaining in both public and private sectors'. Both CFDT and CGT regret the fact that the draft law does not require that elections to establish trade unions' representative status be held at sector and company levels in order to restore union legitimacy.
CGT and CFDT share a deeply negative perception of the fact that the draft law remains silent on the rules governing unions’ representative status (FR0006170F). These two confederations feel that despite its positive aspects in terms of ensuring the stability of industrial relations actors - the five trade union organisations with representative status at intersectoral level were designated in a decree dating back to 1966 - the current system is no longer appropriate to the present situation of trade unions.
A number of union organisations could be granted nationally representative status in any reform of this issue - the Unitary Union Federation (Fédération syndicale unitaire, FSU), the Group of 10 (Union syndicale Groupe des Dix, G10) and the National Federation of Independent Unions (Union nationale des syndicats autonomes, UNSA). These organisations see the establishment of new majority rules, based on the number of employees represented, as a prerequisite for the renovation of social dialogue.
All the actors share the goal of the draft 'Fillon law'- ie revamping collective bargaining and imparting a fresh impetus to it. However, it is questionable whether the means chosen by the Minister will enable these objectives to be achieved. Indeed, the new rules, particularly those on the relationship between sectoral and company-level bargaining, have generated trade union hostility, while on the other side, the employers are planning to prioritise company-level talks. The new strategies developed by the social partners may unfortunately result, at least in the short term, in deadlock. (Catherine Vincent, IRES)