Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - France (Ratification: 1951)

The Committee notes the Government’s reply to the observations of 25 September 2005 by the General Confederation of Labour – Force ouvrière (FO) criticizing aspects of the reports submitted by the Government in 2005. The FO objects to certain legislative texts on the grounds that they contravene the Convention. The FO refers mainly to Act No. 2004-391 of 4 May 2005 on lifelong vocational training and social dialogue, which amends certain provisions of the Labour Code concerning the negotiation of enterprise agreements in the absence of a trade union delegate, and coordination between interoccupational agreements, sectoral agreements and enterprise or establishment agreements, which, according to the FO, contravene Article 4 of the Convention. The Committee notes that in its replies to the FO’s observations, the Government states that the aim of the Act of 4 May 2004 is to build the social partners’ capacity to bargain, and to encourage social democracy by deepening the dialogue between the partners at all levels – interoccupational, sectoral and enterprise – and that the Act is also intended to strengthen the legitimacy of the social partners’ participation in the framing of legislation on labour relations. The Government further indicates that the Act draws largely on the common position of the social partners in establishing the ground rules for collective bargaining and then organizing the conclusion and termination of agreements democratically, by the will of the majority.

The Committee notes that since the period covered by the Government’s report ended on 1 July 2005, the report does not address the consequences of texts adopted after that date. The Committee notes that in answering the FO, the Government states that in its next report it will send Ordinance No. 2005-892 and the report on its effects.

The Committee notes that Ordinance No. 2005-892 of 2 August 2005 has been challenged before the Council of State by the FO, inter alia. In its decision of 19 October 2005, the Council of State declined to rule and applied to the Court of Justice of the European communities for a ruling on the compatibility of certain aspects of Ordinance No. 2005-892 with two European directives (Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, and Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies). The Council of State suspended the application of Ordinance No. 2005-892 by a preliminary injunction of 23 November 2005. The Committee requests the Government to send any decisions regarding this matter as soon as they have been handed down.

The Committee notes that a new type of contract, the “new recruitment contract”, has been created by Ordinance No. 2005-892 of 2 August 2005 and has been challenged before the courts. The Committee request the Government to provide all available information on the abovementioned legal proceedings.

Finally, the Committee notes with interest that the Council of State considers that the entry into force of the Preamble to the Constitution of 20 October 1946, the sixth paragraph of which implies that every legally constituted trade union organization is entitled (provided that it is representative) to participate in collective negotiations, implicitly but necessarily has the effect of repealing the provisions of section 10 of the Ordinance of 2 November 1945 in that they included in the monopoly conferred on the National Chamber of Bailiffs, issues arising out of the rights of occupational organizations, whether of employers or of workers. The Committee notes that the repeal of section 10 of the Ordinance of 2 November 1945, as registered in a court decision not subject to review, has the effect of securing the right to organize of bailiffs as employers and the right to collective bargaining of their occupational organizations.