Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 362, Novembre 2011

Cas no 2750 (France) - Date de la plainte: 02-DÉC. -09 - Clos

Allegations: The complainant alleges that the Act of 20 August 2008 to renew social democracy and to reform working hours and its implementing texts infringe the provisions of the ILO’s Conventions on freedom of association and the right to bargain collectively, which have been ratified by France

1. 848. The complaint appears in communications dated 2 December 2009, and 28 June and 11 July 2011 from the Confédération générale du travail–Force ouvrière (CGT–FO).
2. 849. The Government sent its observations in communications dated 8 June 2010, 29 October 2010, 14 January 2011 and 3 October 2011.
3. 850. France has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant organization’s allegations

1. 851. In its communication dated 2 December 2009 the CGT–FO denounces the passing of a law and a number of implementing texts for infringing the principles of freedom of association and the right to bargain collectively, namely: Act No. 2008-789 of 20 August 2008, to renew social democracy and to reform working hours (hereafter “the Act”), section 42 of Act No. 2009-526 of 12 May 2009 to simplify and clarify the law and to simplify procedures, and circular No. 20 of 13 November 2008 regarding the Act to renew social democracy and to reform working hours. It provided additional information in communications dated 28 June and 11 July 2011.
2. 852. The CGT–FO states that the Act modifies the mandatory criteria for trade union representativity when appointing one or more union delegates with authority to engage in collective bargaining. The complainant explains that union representation in France has been traditionally based not only on general criteria (membership, independence, contributions, experience and age of the trade union, and patriotic attitude during the Occupation) but also on the presumption of representativity that is conferred at the industry or enterprise level on organizations affiliated to first-tier organizations whose own representativity is unchallengeable. Since 1966, five confederations have benefited from this presumption of representativity at the national and interoccupational level: the CFDT, CFTC, CFE–CGC, CGT and CGT–FO. Some trade unions that are not affiliated to these confederations have acquired their representativity at the industry or sectoral level.
3. 853. According to the CGT–FO the new Act incorporates a number of general criteria, such as respect for republican values, financial independence or transparency, the requirement that the organization obtain at least 10 per cent of votes cast in the first round of elections for union representatives on the works committee or for union delegates at the enterprise or establishment level – or a combined total of 8 per cent of votes cast in the first round of occupational elections at the industry level. At the interoccupational level an organization must, in addition to obtaining at least 8 per cent of the votes, be simultaneously representative in the industrial, construction, trade and services sectors. The criterion of representativity based on voting strength in occupational elections at every level would henceforth be assessed every four years.
4. 854. However, at the level of enterprises with 50 or more employees, the Act provides that organizations that meet the criteria of respect for republican values and independence and have been legally established for less than two years may designate a representative from a dedicated union branch even if they are not representative under the election criterion. Any such representative enjoys the same prerogatives as a union delegate except for the authority to negotiate collective agreements.
5. 855. The CGT–FO contends that the Act could have the effect of denying many unions that have signed collective agreements the right to bargain collectively, as a result of subsequent occupational elections whose outcome might depend on a variety of transient factors and which might thus prevent them from attaining the minimum representativity requirement. Moreover, the new system is liable to generate situations where an organization is recognized as being representative at the national or interoccupational level but may nevertheless find it difficult to establish its presence at the enterprise or industry level. Ultimately, then, the new Act would merely undermine and reduce freedom of association and the right to bargain collectively.
6. 856. The complainant also questions the means that the new system affords non-representative organizations to represent at least their own members or the workers who have voted for them. From the standpoint of the Committee on Freedom of Association’s principles, the Government should take steps to ensure that organizations deemed non-representative in terms of elections, and which are thus excluded from engaging in collective bargaining, are at least able to make their claims known to the parties to the negotiations and, specifically to the employer. The CGT–FO suggests that non-representative organizations should be invited to take part in consultations held prior to the negotiations themselves. Lastly, the complainant points to situations where organizations are deemed to be non-representative and are excluded from consultations because they have not obtained 10 per cent of votes cast at the higher level of the public establishment concerned, whereas they have done so comfortably in elections at the level of the unit.
7. 857. With regard to the mandate of union delegates, the complainant feels that the four-year period set by the Act is far too long for organizations deemed to be representative to be granted exclusive rights in collective bargaining. The CGT–FO suggests that it might be possible to review the question of representativity within the enterprise before the four years have elapsed, to offset the conferral of exclusive negotiating rights.
8. 858. Regarding the appointment of union delegates, the complainant also challenges the new legal requirement that they should be appointed from among the candidates in occupational elections who obtained at least 10 per cent of votes cast in the first round of the most recent elections to the works committee (section L2143-3 of the Labour Code). Such a condition restricts the freedom of workers’ organizations to elect their representative freely, organize their management and activities without the public authorities intervening in any way to restrict this right, in accordance with Article 3 of Convention No. 87. The complainant refers to a judgement dated 20 May 2011, issued by the Metz city court (attached to the complaint), regarding a case in which, despite the fact that a list of candidates for election to an enterprise committee had obtained a number of votes clearly higher than the required proportion, which is set by law at 10 per cent (17.2 per cent of the 209 votes cast by 262 employees registered under the three categories “workers”, “employees” and “supervisors and managers”), the company contested the union in question’s appointment of its representative on the grounds that he had not been included on the list of candidates for election chosen by the staff. In this regard, the complainant organization denounces the fact that the court was able to judge null and void the union’s appointment of its delegate on grounds that section L2143-3 of the Labour Code must be subject to narrow interpretation in order not to allow trade unions to distort the law and appoint whoever they wish, irrespective of the votes cast by the workers. According to the complainant organization, this is clearly a violation of the right of workers’ organizations to freely elect their representatives, organize their management and their activities, as set out in Convention No. 87. The CGT–FO particularly regrets that the court considered that the law clearly stipulated that a union delegate can only be a person who has been appointed by his or her employee peers, without distinguishing between, on one hand, the freedom of a union to elect its own representatives by an internal vote held among its members, and election of company committee delegates by all employees, including those who are not union members or are members of different unions, on the other. Also, according to the CGT–FO, the role of the union delegate responsible for representing the union within the company, particularly in the context of collective bargaining, is clearly separate from that of the staff representative in an enterprise committee, who does not have a role in collective bargaining and whose functions are related to the management of social and cultural activities and information on the economic situation of the enterprise. Furthermore, the CGT–FO points out that, as it is worded, the judgement could lead, in certain cases, a trade union to appoint a representative from among other candidates (including from another trade union), and only in the absence thereof, one of its own members. Lastly, the CGT–FO refers to other serious consequences of such a reading of the law, demonstrated by recent events, including if a trade union delegate, standing as a candidate in political elections, behaves in violation of the statutes of the union, which sees fit to dismiss them from union duties and replace them. Such a situation could result in a union, which has taken a decision to ensure respect for its statutes, finding itself without legal representation for collective bargaining within the enterprise.
9. 859. The complainant organization also refers to a decision issued by the Court of Cassation, dated 29 June 2011, which relies on the same reading of section L2143-3 of the Labour Code, recalling that only when a union no longer has a candidate who fulfils the condition of having stood for election and having received more than 10 per cent of the votes can it appoint a delegate from among the other candidates or, in the absence thereof, from among its members within the enterprise.
10. 860. The duration of the union delegates’ mandate stipulated in the Act is a further restriction on trade unions’ freedom to manage their affairs and elect their officials as they see fit. For example, the four-year mandate stipulated in the Act could prevent a union from renewing the mandate of certain officials if it wishes to do so before the scheduled works committee or staff delegate elections. The new provision could have repercussions at every level and thus further diminish a trade union’s freedom to manage its own affairs, since officials are usually elected from among the members of the enterprise-level union where the mandate is for four years. The CGT–FO’s constitution, for instance, provides for a three-year mandate, which is the statutory interval between two Congresses.
11. 861. As to the representatives of union branches of trade unions that are deemed to be nonrepresentative, their mandate under the new Act expires at the end of the first occupational elections to be held following their appointment if the trade union that appoints them is not recognized as being representative at the enterprise level. They can then not be reappointed as union branch representatives until six months before the next occupational elections to be held in the enterprise (section L2142-1-1 of the Labour Code). The Act could thus prevent the establishment of a newly created trade union in an enterprise in the event of its appointing a branch union representative but failing to win enough votes in the subsequent occupational elections. According to the Act, the representative loses his or her mandate and for a while is no longer able to represent the union; this would constitute interference in the exercise of trade union duties and violate the union’s internal decision-making procedures.
12. 862. The complainant recalls that prior to the Act a non-representative trade union could neither set up a union branch nor appoint a union delegate; however, once it acquired representativity, it was completely at liberty to manage its affairs and appoint a union delegate. The new Act, by contrast, is more restrictive since, with 10 per cent minimum requirement in occupational elections, the criteria are more difficult to meet. In the past, once an organization was established at the enterprise level, its representativity was definitive unless challenged in court; but this is no longer the case.
13. 863. The complainant also challenges the new rule governing the validity of collective agreements. The Act subordinates their validity to their being signed by one or more trade unions which have won at least 30 per cent of the votes cast in interoccupational elections (sections L2232-2, L2232-6 and L2232-12 of the Labour Code). However, this new rule is liable to give rise to situations where organizations deemed legally representative under the Act – and therefore theoretically empowered to negotiate and conclude agreements – are in practice, not allowed to sign those agreements because they have not obtained 30 per cent of votes cast that are required under the Act. Moreover, the reasons given for the provision in the 2008 Act and in the application circular of 13 November 2009, explicitly refer to the prospect of collective agreements eventually being adopted by majority vote.
14. 864. According to the CGT–FO, a threshold of 30 per cent, and eventually 50 per cent, for collective agreements to be declared valid is contrary to Article 4 of Convention No. 98, in a system where the pluralism of trade unions has traditionally been the rule, as such a high threshold will reduce the likelihood of their being validated and goes against the objective of promoting the broadest possible development and utilization of voluntary collective bargaining procedures. In the past, there was no such requirement for validation. It was only when the option of derogating from the more favourable terms of sectoral collective agreements was introduced at the enterprise level that a procedure for validating works agreements was established in Act No. 2004-391 of 4 May 2004. However, validation was still dependent on the signatories to the sectoral agreement, whose decision was invariably taken on the basis of lack of opposition from one or more majority trade unions (with 50 per cent representativity).
15. 865. The complainant notes that the Act provides for the possibility of negotiating, at the level of enterprises employing over 200 workers, with one or more employees mandated by one or more organizations recognized as being representative at the national level if there is no union delegate and the elections have not been officially declared invalid. However, such a possibility has to be provided for in an extended sectoral agreement. Finally, if there is no union delegate and no other means of negotiating in the enterprise, negotiations with the representative of a union branch is permissible as a last resort. The Act makes the validity of any agreement thus concluded dependent on its approval by a majority of the workforce; if it is not so approved, the agreement is considered null and void (section L2232-14 of the Labour Code). The complainant considers that the conditions laid down in the Act for validating the agreement are open to challenge under Convention No. 98 and under the principle laid down by the Committee on Freedom of Association to the effect that “in so far as the persons who conclude collective agreements are trade union representatives, the requirement that they be approved by an absolute majority of the workers involved may constitute an obstacle to collective bargaining that is incompatible with the provisions of Article 4 of Convention No. 98”. Moreover, the possibility of negotiating with elected staff representatives has existed only since the Act of 4 May 2004 in enterprises that are bound by extended sectoral agreements providing specifically for that type of negotiation. The Act also does away with the dependence of this provision on collective bargaining, which can be considered as contrary to Convention No. 98.
16. 866. The complainant considers that all the possibilities of derogation provided for in the Act are liable to weaken the position of enterprise-level unions, whereas in the ILO’s instruments the preference goes to workers’ organizations as one of the two parties to collective negotiations, and representatives of unorganized workers are mentioned only in the absence of such organizations (Article 2(1), Collective Agreements Recommendation, 1951 (No. 91)). The absence of a staff delegate does not mean that there is no trade union, even a legally representative union. The Act requires that the union delegate be appointed from among candidates in occupational elections who obtain more than 10 per cent of the vote. Yet, in small and medium-sized enterprises especially, a situation may arise in which no union delegate is appointed despite the existence of a representative trade union, if the trade union does not wish (or no longer wishes) to appoint a delegate from among the eligible candidates to represent it. In this case, the representative trade union has no way of being represented at the negotiating table. Under the new Act an employer could thereupon engage in enterprise-level negotiations with other mandated representatives, to the detriment of the trade union.
17. 867. The complainant recalls that the ILO’s Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), contain explicit provisions guaranteeing that, where both trade union representatives and elected representatives exist in an enterprise, appropriate measures must be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned. Yet there are instances where the Act goes against that principle.
18. 868. The complainant states that, by and large, the 20 August 2008 Act is in practice a legislative transcription of a “joint position” that was signed by two of the three main employers’ organizations and two of the five representative union confederations. Although all the representative union confederations took part in the negotiations, the provisions that were eventually incorporated into the “joint position” were not agreed to by all the negotiating parties since, in the view of the complainant, they were liable to undermine their rights in terms of freedom of association and collective bargaining.
19. 869. The CGT–FO recalls that under the old legislation, although some of its provisions relating to trade union rights, union representativity and the right to bargain collectively, were debatable, France had at least managed to enjoy a particularly high level of coverage by collective agreements (97.7 per cent of employees in 2004); only 2.3 per cent (350,000 employees) were not covered by any agreement or statutory text. Most of the latter are somewhat outdated, but agreements are regularly amended and supplemented. Between 1998 and 2008, for instance, 119 new collective agreements were concluded, some of them on an entirely new basis, others as a reformulation of obsolete agreements, and yet others by the consolidation or splitting up of existing agreements. In 2008 alone, over 27,100 enterprise-level agreements were signed.

B. The Government’s reply

1. 870. In its communications dated 8 June 2010, 29 October 2010, 14 January 2011 and 3 October 2011, the Government describes the Act as one of the mainstays of its labour law reform. Its aim is to reaffirm the legitimacy and role of collective bargaining as an essential means of modernizing industrial relations, so as to ensure that legislation and collective bargaining play complementary roles. Social dialogue needs to be based on organizations that are strong and legitimate, and this means reforming union representativity so as to enhance the legitimacy of the partners to negotiations which are themselves founded on modern criteria that are reassessed periodically and irrefutably, notably on the basis of voting strength in elections.
2. 871. In the spirit of section L.1 of the Labour Code the Government submitted a set of guidelines to its social partners on 18 June 2007, inviting them to discuss the criteria for trade union representativity, the rules for validating collective agreements and collective bargaining in small and medium-sized enterprises. On 26 December the Government sent the social partners another document requesting that the negotiations be broadened to include the financing of trade unions and occupational organizations and the question of hours of work. It was on the basis of these two sets of guidelines that the negotiations, in which the complainant organization took part, led to the drafting of a “Position paper on representativity, social dialogue and trade union financing” that was signed on 9 April 2008 by two employers’ organizations (MEDEF and CGPME) and two workers’ confederations (CGT and CFDT). The Act was drawn up on the basis of the joint position paper, with the idea of conferring as much legitimacy as possible on the social partners and of reaffirming the legitimacy and scope of collective agreements. In the Government’s view, the Act focuses strictly on the promotion and utilization of collective bargaining referred to in Article 4 of Convention No. 98.
3. 872. The Act sets out to modernize the system of representativity of trade unions by doing away with the unchallengeable presumption of representativity that was accepted in the past and by founding it instead on modern criteria that are reassessed periodically and irrefutably, notably on the basis of voting strength in elections. The earlier system was justified in the historical context of the post-war period as a means of facilitating the development of trade unionism in the enterprise and of avoiding multiple and systematic disputes. Nowadays, however, the idea that union representativity can be conferred on certain organizations by the State is no longer understood by the rank and file and can even contribute to a sense of marginalization.
4. 873. The Government considers that the Act is perfectly in line with Paragraph 3 of ILO Recommendation No. 163, which provides that measures adapted to national conditions should be taken so that representative employers’ and workers’ organizations are recognized for the purposes of collective bargaining, and so that in countries in which the competent authorities apply procedures for recognition with a view to determining the organizations to be granted the right to bargain collectively, such determination is based on pre-established and objective criteria with regard to the organizations’ representative character, established in consultation with representative employers’ and workers’ organizations.
5. 874. In responding to the complainant’s allegations, the Government refers to a recent ruling of the French Supreme Court of Appeal (Cour de cassation) on 20 August 2008 Act (Cass. soc., 14 April 2010, Nos 09-60.426 and 09-60.429).
6. 875. With regard to the complainant’s questioning of the new criteria based on voting strength in elections for determining a trade union’s representativity, the Government recalls that the Act merely reflects a proposal contained in the joint position paper adopted on 9 April 2008, which called for new criteria for representativity. Section L2122-1 of the Labour Code now stipulates that, to be recognized as representative, trade unions must obtain at least 10 per cent of the votes cast in the first round of the most recent elections for the permanent members of the works committee, for the single staff delegation or, in their absence, for the staff delegates. The minimum threshold of 10 per cent of votes cast in occupational elections for a union to be considered representative is a more objective criterion, inasmuch as its legitimacy is acquired by vote. Under the new Act the employees vote to choose the organization that will negotiate on their behalf at every level. By placing all trade unions on an equal footing from the date on which occupational elections are held, the Act meets the objective of promoting collective bargaining in accordance with Article 5 of Convention No. 154. It does not in any way undermine the freedom to establish trade unions or for such unions to operate at the enterprise level.
7. 876. Regarding the complainant’s doubts as to the means available to non-representative organizations to represent their members and the suggestion that steps be taken to ensure that they are able to make their claims known to the parties to the negotiations, and specifically to the employer, the Government recalls that Recommendation No. 163 mentions several ways of promoting collective bargaining, one of which is the recognition of workers’ and employers’ organizations. According to the Recommendation, the right to engage in collective bargaining may be restricted to representative trade unions. Moreover, prior to the new Act, the right to negotiate collective agreements was likewise restricted exclusively to representative trade unions. The Act has merely added the criterion of voting strength in elections. Lastly, the Government refers to the Supreme Court of Appeal’s ruling on 14 April 2010 that States are free to reserve the right to engage in collective bargaining for representative trade unions, which is not prohibited by ILO Conventions Nos 98 and 135.
8. 877. The Government adds that the Act has introduced new rules for developing the presence of trade unions in the enterprise. In future, any union that has been lawfully constituted for at least two years is entitled to the same prerogatives as were previously restricted to representative organizations, provided that they meet the criteria of respect for republican values and of independence and that their occupational and geographical coverage includes the enterprise concerned. The Act thus introduces a new mandate, i.e. that of the representative of a non-representative trade union in enterprises with over 50 employees. It is now possible for a non-representative union to establish itself and operate at the enterprise level, since a union branch representative enjoys the same prerogatives as a union delegate, except for the authority to negotiate collective agreements
   • (section L2142-1-1 of the Labour Code).
9. 878. With regard to the complainant’s questioning of the four-year period referred to in the Act for measuring voting strength in trade union elections, the Government makes a distinction between the duration of the mandate of elected members of works committees or staff delegates and the period over which a union’s voting strength in elections is measured, which is a four-year cycle at the sectoral, national and interoccupational level. The mandate of elected members of works committees and of staff delegates was increased to four years under Act No. 2005-882 of 2 August 2005; however, this 2005 Act stipulates that a sectoral agreement, group agreement or enterprise agreement, as appropriate, can determine that the mandate of staff delegates and of staff representatives on works committees, enterprise committees, central works committees and group committees may be from two to four years. Thus, the voting strength of a trade union, in order to determine its representativity at the enterprise, establishment or group level, can now be measured over a shorter period than four years.
10. 879. The Government notes that the CGT–FO challenges the new condition laid down in section L2143-3 of the Labour Code to the effect that union delegates must be appointed from among the candidates to occupational elections who obtain at least 10 per cent of the votes cast in the first round of the most recent elections for the works committee or for the single staff delegation or for the staff delegates. However, contrary to the contention of the CGT–FO, the right of organizations to elect representatives of their own choosing refers not to the freedom of representation of trade unions in collective negotiations but to the right to elect their leaders in full freedom. Regarding the alleged interference by the public authorities in the internal management of trade unions, the Government concludes from its reading of the Digest of decisions and principles of the Freedom of Association Committee that their right to conduct their activities freely must be interpreted as the right for trade unions to engage in lawful activities in defence of their occupational interests. Consequently, the condition imposed by the Act as to the choice of union delegates does not constitute an intervention that is liable to restrict or impede the lawful exercise of the right of trade unions to elect their representatives in full freedom and to organize their administration and activities, within the meaning of Article 3 of Convention No. 87. To the contrary, the purpose of this condition is to strengthen workers’ relationships with representatives who have the authority to negotiate and sign collective agreements, thereby enhancing the representatives’ legitimacy. The Government refers to the ruling of the Supreme Court of Appeal, which states that “the obligation for representative unions, in choosing a union delegate, to give priority to the candidates who obtain at least 10 per cent of the votes cast does not conflict with any prerogative that is inherent in freedom of association and, inasmuch as it helps to ensure that the employees themselves determine who is best equipped to defend their interests in the enterprise and to engage in negotiations on their behalf, it does not constitute arbitrary interference in the function of the trade union”.
11. 880. The Act also makes sure that a representative trade union cannot be excluded from negotiating by stipulating that, “should there not be any other candidate in the enterprise or establishment who meets the condition set in the first paragraph above (10 per cent of votes cast), a representative trade union may appoint a union delegate from among the other candidates or, if there is none, from among its members within the enterprise or establishment” (section 5.I of the Act, codified under section L2143-3 of the Labour Code).
12. 881. With regard to the CGT–FO’s allegation that the provisions of the Act dealing with representatives of a union branch are also incompatible with the right of trade unions to elect their representatives in full freedom, on the grounds that they have a direct impact on the duration of the mandate of the union branch representative, the Government points out that the creation by law of union branch representatives is intended to permit unions which are not representative in enterprises with over 50 employees but which meet various conditions to establish themselves and operate in those enterprises, with an eye to the next occupational elections. The appointment of a representative can help the organization concerned to attain the threshold of 10 per cent of votes cast and thus be recognized as representative within the enterprise. That is the objective of section L2142-1-1 of the Labour Code, which states: “The mandate of the union branch representative expires following the first occupational elections to be held after his appointment, if the union that appointed him is not recognized as representative within the enterprise. Employees who lose their mandate as union representative in this way may not be reappointed as a union branch representative until six months preceding the next occupational elections to be held in the enterprise.” Should an employee thus lose his or her mandate, the union which made the appointment is free to appoint another employee as its union branch representative. Moreover, the employee originally appointed may be reappointed as from six months prior to the subsequent occupational elections in the enterprise.
13. 882. Consequently, the legal framework for the duration of a union branch representative’s mandate cannot be regarded as tantamount to state intervention that is liable to restrict or impede the lawful exercise of the right of organizations to elect their representatives in full freedom in accordance with Article 3 of Convention No. 87. Referring to the position of the Committee of Experts on the Application of Conventions and Recommendations cited by the complainant, to the effect that any provision, irrespective of its form, which restricts or prohibits re-election to trade union office is incompatible with Convention No. 87, the Government argues that this means the right of trade unions to elect their officials in full freedom in the course of internal elections and that it is therefore irrelevant to the case in point.
14. 883. As to the CGT–FO’s claim that the Act would weaken the situation of trade unions in the enterprise by granting elected representatives, or even employees duly mandated by representative trade unions in the sector concerned, the right to negotiate collective agreements, even where representative unions already exist in the enterprise, the Government states that the Act is designed to take on board the difficulty of implementing collective bargaining in small and medium-sized enterprises, owing to the very limited representation of the employees. Thus, it broadens and clarifies the framework within which collective bargaining can be undertaken with elected representatives or duly mandated employees. Under the earlier Act No. 2004-391 of 4 May 2004, which had already introduced the possibility of an extended sectoral agreement providing for collective agreements in enterprises with no union delegate to be negotiated and concluded by elected works committee members, by staff delegates or even by duly mandated employees should no representative be forthcoming from occupational elections, very few agreements were signed at the sectoral level (less than 20 in 2008). The signatories of the joint position paper considered that the requirement that there be a prior sectoral agreement might explain why negotiations of this kind never really caught on. They therefore chose to do away with the requirement for prior authorization by extended sectoral agreement while defining strictly the conditions and procedure for resorting by derogation to this kind of collective bargaining. The new Act merely incorporates this proposal.
15. 884. The first condition for engaging in this type of bargaining is that there should be no union delegate in the enterprise, hence no representative trade union. In enterprises with over 200 employees that have no union delegate, agreements may be concluded with the staff representatives or, where there are none, with an employee who has been duly mandated by a trade union which is representative at the sectoral level in enterprises where elections for staff representatives have been officially declared null and void. In line with the joint position, the Act stipulates that an agreement that has been concluded under the derogation procedure enters into force only once it has been signed by duly elected trade union officials who obtained a majority of votes in the most recent elections and once it has been validated by a joint sectoral committee. Moreover, where there is no union delegate or where the occupational elections have been declared null and void, agreements that have been negotiated with an employee who has been mandated by a representative trade union within the sector must be approved by a majority of the votes cast by the employees of the enterprise concerned.
16. 885. The Government points out that the example cited by the complainant is that of a trade union that does not wish to appoint a union delegate from among those of its candidates who obtained fewer than 10 per cent of votes cast. If there is no union delegate, the organization can have no representative present during the negotiations, which are then liable to be blocked. If a union refuses to appoint one of its candidates who obtained more than 10 per cent in the vote, that is a sovereign decision of the organization concerned, which thus places itself in a situation where it cannot exercise the powers to which it is entitled by virtue of its representativity. When this happens, the employer still has the option of engaging in collective bargaining with elected representatives or with an employee who has been duly mandated by a trade union to negotiate an agreement that will be validated by a vote of the workforce. In the Government’s opinion, such a procedure is in full conformity with the definition of collective agreements as set out in Paragraph 2(1) of ILO Recommendation No. 91.
17. 886. The Government makes the point that this option takes precedence over negotiations with a union branch representative (section L2143-23 of the Labour Code). Since the latter is representing a trade union that has not met the minimum requirement of 10 per cent of the votes cast by the employees, it is only logical that negotiations should only be possible when all other means of bargaining collectively have been exhausted. That is precisely the intention of the Act, which dismisses the possibility of negotiating with a union branch representative so long as a union delegate is present or there exists the option of negotiating with an elected or duly mandated employee. The purpose of this provision is to favour negotiations with participants whose legitimacy derives from votes cast by the workforce in occupational elections and it cannot have the effect of weakening the position of trade unions vis-à-vis elected representatives.
18. 887. The complainant also challenges the new rules for validating agreements, and specifically the 30 per cent threshold for representativity required under the Act for one or more trade unions to sign a collective agreement validly, but the Government points out that the provisions relating to the validity of agreements merely reflect the joint position of the social partners in opting for an intermediate stage before moving toward the conclusion of agreements by absolute majority – an issue that has been postponed until future negotiations.
19. 888. The Government points out that the validity of enterprise, sectoral and interoccupational agreements is dependent, on the one hand, on their having been signed by one or more representative trade unions which alone or together obtained at least 30 per cent of the votes cast in the most recent occupational elections at the level concerned and, on the other, on the absence of any opposition from representative trade unions that obtained a majority of votes cast. These rules entered into force on 1 January 2009 for enterprises and will do so no later than five years after publication of the Act for sectoral and interoccupational agreements.
20. 889. The Government concludes by stating that it would not seem, from early data on negotiations at the enterprise level since the Act came into force, that there has been any decline in the volume of collective bargaining, any more than there was a drop in the number of collective agreements concluded in 2009. On the contrary, the gradual increase in the number of agreements signed in recent years appears to have been maintained.
21. 890. In a communication dated 29 October 2010 the Government expressed the wish to supply further information in reply to the allegations, including the views of the representative organizations which signed the joint position paper of April 2008.
22. 891. In a communication dated 14 January 2011 the Government sent additional observations and also attached observations which the signatories of the joint position paper of April 2008 (CGT, CFDT, MEDEF, CGPME) made in relation to the complaint, these organizations having been consulted by the Ministry of Labour. The Government indicates that the conformity of the Act with the French Constitution and international standards has been reaffirmed by the national courts. The Supreme Court of Appeal (the highest court in France) declared, in response to a recent query about the Act’s conformity with international conventions, that States are free to restrict the right to engage in collective bargaining to representative trade unions, which is not prohibited by ILO Conventions Nos 98 and 135 (Cass. soc. 14 April 2010, Nos 09-60.426 and 09-60.429). The Constitutional Council, in two rulings on priority issues of constitutionality dated 7 October and 12 November 2010, declared the Act of 20 August 2008 to be in conformity with the principles of freedom of association, equality before the law and worker participation in the collective determination of conditions of work as guaranteed by the French Constitution.
23. 892. The Government recalls that the system prior to the Act of 20 August 2008 was based on presumed representativity which was unchallengeable and not subject to any time limit, whose origins lay in the historical context of the post-war period. However, the social partners who signed the joint position paper of 9 April 2008 concluded that the system had reached its limits. In order to strengthen social dialogue and the influence of collective agreements and tackle very low levels of unionization in the private sector (around 5 per cent), the organizations which signed the joint position paper proposed modernizing the system governing the representativity of workers’ trade unions by eliminating the unchallengeable presumption of representativity and basing this on revamped criteria subject to periodic and irrefutable reassessment, taking particular account of voting strength in elections, which is the direct expression of the will of the workers. For this reason the provisions of the Act concerning the intervals for measuring union voting strength replicate those proposed by the joint position paper. Moreover, the choice to reassess voting strength in the light of the results of occupational elections in enterprises stems from the high rate of employee participation in these elections (around 66 per cent).
24. 893. The Government declares that, with respect to the public service, an agreement was signed on 2 June 2008 by the CGT, CFDT, FSU and UNSA. Based on the principles of social democracy deriving from the Act, this agreement also chooses to take account of voting strength via the results of occupational elections (elections to technical committees) to determine union representativity. The agreement was transposed by Act No. 2010-751 of 5 July 2010 concerning the renewal of social dialogue and comprising various provisions relating to the public service.
25. 894. The Government indicates that the maximum four-year mandate for staff representatives seemed reasonable to the organizations which signed the joint position paper since transparency regarding terms of office and continuity with respect to negotiators are needed to create high-quality social dialogue. The duration of the mandate of elected members of works committees or staff delegates was increased to four years by Act No. 2005-882 of 2 August 2005, and this duration was therefore determined prior to the adoption of the Act of 20 August 2008. Moreover, section 96 of the Act of 2 August 2005 states that a sectoral agreement, group agreement or enterprise agreement, as appropriate, can determine that the mandate of staff delegates and staff representatives on works committees (at enterprise or establishment level), central works committees and group committees may be from two to four years. At the enterprise level, the duration of the mandate can therefore be freely fixed initially at less than four years by prior collective agreement concluded with the representative trade unions. It is for the social partners to decide on the duration that is most appropriate to the local context.
26. 895. On the other hand, any holding of early elections would have to be justified by objective criteria (for example, an increase or reduction in the workforce, restructuring, etc.), since a shift in the balance of power among unions would be difficult to define in objective terms. As regards the grounds justifying such elections, the Labour Code specifies certain circumstances arising, for example, from restructuring of the enterprise or establishment (sections L2314-28 and L2324-26 of the Labour Code). Hence, even though a trade union can now request the opening of negotiations on this subject, the signing of any agreement depends on the unanimous consent of all the representative unions in the enterprise, along the lines of an election held to appoint additional delegates (apart from those currently holding office) to take account of any increase in the size of the workforce between two elections. The Supreme Court of Appeal considered, in a ruling of 13 October 2010, that an additional election can only be held if provision is made for it through a collective agreement signed by all the unions present in the enterprise.
27. 896. The Government emphasizes that the holding of early elections is a serious action that calls into question the mandates of the elected representatives already holding office. Allowing a single union acting alone to call for early elections would therefore entail a number of risks, by giving any union – especially a minority or non-representative union – such a prerogative, and would undermine the position of elected staff representatives already in office. Moreover, failure to establish objective criteria relating to variations in the workforce or changes in the legal status of the enterprise in order to open negotiations with a view to early elections would run counter to the obligation of fairness towards the electorate, who cast their votes in the light of a given situation (especially a specific term of office determined in advance). Calling into question existing electoral mandates might create an unstable climate of constant campaigning for elections which would undermine the continuity required for accomplishing a mandate and distort the perspective needed for evaluating negotiated collective agreements and union action in the enterprise. Finally, the frequent calling into question of mandates would also prevent voters from evaluating in the long term whether representatives had performed their duties and discharged their mandates satisfactorily.
28. 897. The Government concludes that changing the maximum four-year term of office during an existing mandate would therefore run the risk of constantly calling into question organizations recognized as representative in the enterprise and undermine the Act’s objective of conferring legitimacy on the players concerned.
29. 898. As regards the question of the choice of union delegates from among the candidates for occupational elections who have obtained at least 10 per cent of the vote, the Government points out that union delegates do not necessarily have to be elected and adds that the criteria for the appointment of a union delegate established by the Act of 20 August 2008 replicate those of the joint position paper of 9 April 2008.
30. 899. The Government indicates that unlike in other countries, especially within Europe, collective agreements in France do not apply solely to unionized employees but grant wider benefits to all employees covered by their scope; employees in an enterprise might therefore not be acquainted with the person who had signed the agreement binding them all and who had been under no obligation to justify his actions as negotiator to them. Hence, to strengthen the position of collective bargaining and bearing in mind that the signing of an enterprise or establishment agreement by a union delegate is binding on the whole work unit, it appeared necessary to reinforce the legitimacy of the union delegates themselves.
31. 900. The Government bases its position on the ruling of the Supreme Court of Appeal, which stated that “the obligation for representative unions, in choosing a union delegate, to give priority to the candidates who obtain at least 10 per cent of the votes cast does not conflict with any prerogatives that are inherent in freedom of association and, inasmuch as it helps to ensure that the employees themselves determine who is best equipped to defend their interests in the enterprise and to engage in negotiations on their behalf, it does not constitute arbitrary interference in the functioning of the trade union”. The Government also recalls that the Constitutional Council, in a decision of 12 November 2010, confirmed that section L2143-3 of the Labour Code concerning new conditions for the appointment of union delegates is in conformity with the French Constitution. The Council considered “that, by imposing the obligation on representative unions, in choosing union delegates, to give priority to the candidates who obtained at least 10 per cent of the votes cast in the first round of the latest occupational elections, section L2143-3 involves employees in the appointment of the persons recognized as being the best equipped to defend their interests in the enterprise and engage in negotiations on their behalf; that, in adopting this section, the legislator has not disregarded the principle of freedom of association set forth in the sixth subparagraph of the Preamble of 1946”.
32. 901. With regard to recent court decisions, in particular the decision of 20 May 2011, of the Metz city court, which, pursuant to section L2143-3 of the Labour Code, annulled the appointment of a union representative, the latter not having been chosen from among candidates for election to the enterprise committee who had themselves received at least 10 per cent of votes cast, or the decision of 29 June 2011 of the Court of Cassation which annulled the appointment of a trade union representative who was not chosen among the candidates presented by the union in question who obtained at least 10 per cent of the votes cast, the Government declared that the judge had rightly noted and sanctioned attitudes that had the effect of circumventing the legal requirements. Finally, with regard to the situation described by the complainant in which the latter would be forced to revoke a representative who, for example, behaved in violation of the statutes of the union, the Government considers that this does not, as such, limit or impede the lawful exercise of the right of the union to elect another representative, as long as the new person meets the requirements of section L2143-3 of the Labour Code.
33. 902. The Government’s view is that, under the provisions of the Act, unions are totally free to choose the candidates which they wish to nominate for election and, consequently, the persons which they may subsequently appoint as union delegates. Moreover, the Act has taken care to compensate for any situation in which it is impossible to appoint a union delegate for a representative union which no longer has any candidates who obtained at least 10 per cent of the votes in the elections. Here it allows the representative union to appoint a union delegate from among the other candidates or, failing that, from among its members within the enterprise or establishment. Hence a representative union will never be placed in a situation where it is no longer able to choose its representative.
34. 903. As regards the provisions of the Act concerning union branch representatives, the Government indicates that the Act replicates the joint position, which limits the duration of the mandate of the union branch representative to the interval between two elections held in the enterprise. This restriction stems from the fact that the function of the union branch representative is to establish the presence of the branch so that the union which has appointed him obtains results at the next occupational elections which enable it to be recognized as representative, and to then appoint a union delegate having more extensive prerogatives. The mandate of the union branch representative expires at the end of the first occupational elections following his appointment since the union which has appointed him is not recognized as representative.
35. 904. According to the Government, the organizations which signed the joint position paper considered that any representative who was unsuccessful in attaining the 10 per cent threshold needed for his union to be recognized as representative would be unlikely to secure representativity for the union at the next occupational elections. It therefore seemed logical to them that another person should be appointed as union branch representative with a view to the possible formulation of a new electoral strategy. The union thus remains free to appoint a different employee as union branch representative. Moreover, the Government emphasizes that the Act of 20 August 2008 has introduced a measure of flexibility vis-à-vis the joint position on this precise point: the employee originally appointed may be reappointed as union branch representative as from six months prior to the subsequent occupational elections in the enterprise.
36. 905. The Government asserts that initial data available regarding the results of negotiations at enterprise level suggest that there was no apparent decline in the level of collective bargaining or the number of agreements concluded in 2009. On the contrary, the slight increase in the number of agreements signed in recent years seems to have continued.
37. 906. The Government adds that, apart from the fact that the reform of trade union representativity has recently been reaffirmed in national law by the highest judicial authorities in France, the provisions of the Act of 20 August 2008 relating to social democracy have been complemented by Act No. 2010-1215 of 15 October 2010, which seeks to enable more than 4 million employees working in very small enterprises – where occupational elections are not mandatory – to participate in the assessment of union voting strength and, consequently, in the determination of union representativity at the sectoral, national and interoccupational levels. To this end, the Act of 15 August 2010 provides for a regional ballot in which voters opt solely for a given union, not for any named candidates; the ballot takes place every four years and is open to the staff of enterprises having fewer than 11 employees. In an opinion issued on 29 April, the Council of State emphasized that any failure to meet the obligation to measure union voting strength in very small enterprises “would undermine the whole mechanism established by the Act of 2008”.
38. 907. The Government emphasizes that it is devoting special attention, in conjunction with all the closely associated social partners, to following up on the Act of 20 August 2008 complemented by the Act of 15 October 2010 and their implementing texts. The High Council for Social Dialogue (HCDS), which was established by the Act of 20 August 2008, comprises all representative trade unions at the national and interoccupational levels, including the CGT–FO, representatives of the employers’ organizations and also representatives of the Ministry of Labour. In 2013 the HCDS is due to issue an opinion on the results of the assessment of union voting strength. It has met several times since the promulgation of the Act of 20 August 2008 and will continue to meet on a regular basis up to 2013 in order to discuss any issues that might have an impact on the assessment of voting strength. All draft implementing legislation arising from the Act of 20 August 2008, complemented by the Act of 15 October 2010, will be referred to the HCDS prior to adoption. The HCDS is empowered to submit to the Labour Minister the conclusions to be drawn from the application of the Act and also the conclusions to be drawn from the report to be presented to Parliament by the end of 2013 (section 16 of the Act).
39. 908. The Government concludes by indicating that the Act is largely the result of the work of the social partners, and the assessment that it is organizing closely involves all the social partners, including the CGT–FO. A recommendation by the Committee on Freedom of Association requesting the Government to revise certain provisions of the Act would be tantamount to calling for the principal social partners in France to change their joint position, without even waiting for the cooperative assessment provided for by the lawmakers. The Government would therefore like the Committee to invite the Governing Body to consider that this case does not call for further examination.
40. 909. The CGT made a number of observations concerning the reform of trade union representativity, indicating that it has been one of the instigators of the reform. The parliamentary debate concerning the Act of 20 August 2008 took place in July 2008 further to interoccupational negotiations at national level among the representative workers’ confederations (CGT, CFDT, FO, CFTC, CFE–CGC) and the employers’ organizations (MEDEF, CGPME, UPA). These negotiations concluded with the signing of the joint position paper by the CGT, CFDT, MEDEF and CGPME on 9 April 2008. The joint position was unanimously validated in April 2008 by the CGT executive committee and in May by 80.4 per cent of the votes of its national committee, the supreme decision-making body between two congresses representing all CGT departmental federations and unions. The CGT recalls the salient points of the negotiations relating to the joint position of 9 April 2008. It recalls in particular that, in contrast to the opposition that they had expressed in the Economic and Social Council in 2006, MEDEF and CGPME finally accepted the idea of basing union representativity on voting strength.
41. 910. The CGT indicates that the freedom and right to establish an enterprise trade union are upheld by the Act of 20 August 2008. Subject to simple criteria aimed at ensuring “union authenticity”, any union may establish an enterprise branch, appoint a representative who enjoys the same protection against dismissal as the delegate of a representative union, and submit a list of candidates for the first round of elections to the representative staff bodies under the same conditions as a representative union. The same guarantees thus apply to any newly established union, whether or not it is affiliated to a representative confederation. It is therefore undeniable that, in the context of trade union pluralism in France, the reform of representativity has increased the freedom to establish unions. The CGT points out that it also asked for newly established unions to be able to have their representativity verified within a reasonable period of time by being able to hold occupational elections without having to wait for the expiry of the four-year period prescribed by law, but this request was not accepted by the employers or incorporated into the Act.
42. 911. The CGT also refers to the additional issue of setting a representativity threshold, i.e. specifying the minimum voting strength that would give a union the right to participate in collective bargaining. Union and employer expectations, albeit different, eventually converged in a positive response to this question. It was thus acknowledged in the joint position paper that a minimum of 10 per cent of the votes cast would be needed to achieve representativity. It was in response to a request from the unions which did not sign the joint position paper that this threshold was lowered to 8 per cent at the sectoral, national and interoccupational levels.
43. 912. As regards the new conditions to be met for appointing trade union delegates, the CGT indicates that a compromise was found by the signatories of the joint position paper. Any union delegate must in principle be appointed from among the candidates for elections, whether or not he is actually elected, with the sole proviso that he obtains a minimum number of votes. The organizations which signed the joint position paper considered that this did not constitute a constraint which jeopardized the freedom of unions to appoint their delegates, otherwise they would not have accepted this provision. In the vast majority of situations – apart from certain enterprises where the level of unionization is very high and unions can avoid combining mandates for election and representation – union delegates are already likely to stand for election. In general, the CGT sees no major difference between voting strength in relation to an individual candidate and in relation to the whole list to which he belongs. Setting an individual threshold for voting strength did not therefore seem a de facto constraint on the freedom of a representative union to appoint the delegate of its choice. The CGT also notes that the Act has not made this provision into an absolute constraint, the lawmakers having considered that it could not impede the representative union’s right to appoint a delegate at any time. If it proves impossible to appoint a delegate from the lists of candidates for occupational elections, the union can make its choice from among any other employees.
44. 913. As regards the validation of collective agreements, the CGT recalls that the employers’ organizations and three confederations were opposed to the validation of agreements being based on the most democratic rule proposed jointly by the CGT and the CFDT, namely that of signing an agreement on the basis of majority voting, according to which the combined voting strength of the signatory unions must exceed 50 per cent of the votes cast. However, a compromise was found, based on a minimum threshold to be reached by the signatory unions to secure approval of the agreement (set at 30 per cent of the votes cast) and on a right of opposition available to the representative unions whose combined voting strength forms a majority. The CGT accepted this compromise provision since it prevents, for the time being, the provisions of collective agreements being imposed on employees by union representation of a decidedly minority nature. In addition, it is mentioned as transitory, since there is the prospect of collective agreements eventually being adopted by majority vote. However, the CGT continues to call strongly for the validation of collective agreements by majority union voting strength.
45. 914. The CGT considers that, with regard to the setting of criteria or thresholds for establishing the representativity of unions and hence their capacity to engage in collective bargaining, the Committee on Freedom of Association of the ILO Governing Body recognizes their legitimacy since the very concept of the most representative organizations of employers and workers is established by article 3, paragraph 5, of the ILO Constitution.
46. 915. By way of conclusion, even though it considers the Act incomplete and it continues to make major demands in the area of social democracy, the CGT declares that the first part of the Act of 20 August 2008 constitutes a major step forward in responding to long-standing demands. Thanks to the new rules on representativity, in which voting strength appears to be the key criterion, the legal concept of union representativity comes close to the workers’ interpretation of the term, namely the capacity to have their occupational issues taken into consideration and to bring their expectations regarding labour relations to all levels of dialogue and negotiation. Moreover, thanks to the new rules on validation of the various types of agreement at the enterprise, sectoral and interoccupational levels, collective bargaining is finally beginning to be recognized as a collective right of workers exercised by their representative trade unions. This is an indisputable advance in social democracy, with which trade unionism has every reason to be concerned in order to develop further and ensure its future.
47. 916. In its observations concerning the complaint, the CFDT recalls that at the beginning of 2008 the five French confederations currently recognized as representative actively participated in negotiations on changes to the rules concerning union representativity. These negotiations took place within the customary framework and in full observance of trade union freedoms. They were concluded on 8 April 2008 with a position paper which each organization was free to sign. The CFDT decided to sign the paper and considers that the complaint submitted by the CGT–FO reflects differences of opinion among the trade unions in France.
48. 917. Moreover, the CFDT declares that, as it had wished, the Government established a High Council for Social Dialogue (HCDS) whose task is to examine the implementation of the mechanisms established by the Act. All the representative unions, including the CGT–FO, are members of the Council.
49. 918. The CFDT considers that the Act makes the recognition of union representativity and the process of establishing a union easier since a non-representative union can now be represented in the enterprise by a union branch representative. This new mandate comes to an end at the time of the following elections since the aim is to secure representativity by obtaining at least 10 per cent of the votes during the elections. If, despite everything, the union fails to become representative, it still has the means to remain present and appoint a representative – which it was unable to do under the previous legislation.
50. 919. Moreover, the CFDT points out that a representative union can appoint as a union delegate any person who has been a candidate (titular or alternate) for one of the elections for staff representatives and has obtained at least 10 per cent of the votes, without necessarily being elected. The freedom of appointment conferred on unions is actually considerable, especially as the vast majority of candidates put forward by a union that will be recognized as representative will generally have attained or exceeded 10 per cent of the votes. The slight constraint of appointing a person who has been a candidate simply obliges the union to think ahead regarding who it wishes to represent it when submitting the list of candidates for election. But this constraint is more than compensated for by the strengthening of the links between the employees and the union, which consolidates its legitimacy and freedom. Given that the union acts on behalf of the employees, particularly when it performs its role as negotiator, it is normal and useful for the employees to be acquainted with the person who has the authority to conclude collective agreements which concern them directly.
51. 920. As regards the duration of mandates, the CFDT considers that, at the time elections are held, unions and employees are aware of the duration of the mandate that will follow the elections. Interrupting the mandate before its normal expiry date would be tantamount to changing the conditions for holding the elections and calling into question the contract entered into with the voters. The CFDT recalls that under the current legislation a significant change in the size of the enterprise or the resignation of a majority of elected representatives may lead to the holding of new elections. However, the CGT–FO’s demand aimed at enabling a non-representative union to call for early elections would appear to be completely unjustified since this would undermine the scope and legitimacy of the election and thus weaken any union sponsoring a list of candidates.
52. 921. In its observations MEDEF emphasizes that in its view the Act of 20 August 2008 represents a qualitative leap in the history of social dialogue in France. The procedure whereby it was formulated was exemplary since the social partners had the possibility to negotiate and reached a joint position, after nearly one year of negotiations. MEDEF observes that representativity used to be conferred by the State but is now based on election results. It considers that the new representativity criteria adopted by the Act are objective, modern and fair, and make for a more accurate reflection of employees’ views. The Act has thus strengthened the legitimacy of the parties concerned and opened the area of negotiation to organizations that more legitimately reflect the employees who they represent. Finally, MEDEF recalls that the Act of 20 August 2008 contains a review clause and that an appraisal of its positive effects will therefore be conducted. After four years of implementation of the Act, it will thus be possible to draw clear conclusions on the basis of a mandatory review.
53. 922. The CGPME declares in its observations that it fully endorses the Government’s reply and considers that it is neither proven nor established that the Act of 20 August 2008 infringes the provisions of ILO Conventions Nos 87, 98, 135 and 154, which have been ratified by France.

C. The Committee’s conclusions

1. 923. The Committee notes that the complaint relates to the conformity of the Act of 20 August 2008 to renew social democracy and to reform working hours, and of its implementing texts, with the principles of freedom of association and with the right to bargain collectively as set out in the relevant ILO Conventions and Recommendations, notably Conventions Nos 87, 98 and 135, which have been ratified by France. The texts challenged also relate to section 42 of Act No. 2009-526 of 12 May 2009 to clarify the law and simplify procedures, and circular No. 20 of 13 November 2008 relating to the Act.
2. 924. The Committee notes that in June 2007, as part of a reform of France’s labour legislation, the Government submitted to its social partners – the three main employers’ organizations and five representative trade union confederations (one of which is the complainant) – a set of guidelines inviting them to discuss the criteria for trade union representativity, the rules for validating collective agreements and collective bargaining in small and medium-sized enterprises. Another document was sent to the social partners in December 2007 requesting that they broaden the negotiations to include the financing of trade unions and occupational organizations and the question of hours of work. On the basis of the two sets of guidelines the negotiations among the social partners resulted in the signing on 9 April 2008, by two employers’ organizations (MEDEF and CGPME) and two trade union confederations (CGT and CFDT), of a “Joint position paper on representativity, the development of social dialogue and the financing of the trade union movement”. The Committee notes that, although all the union confederations benefiting from the unchallengeable presumption of representativity took part in the consultations, the wording ultimately used in the joint position paper was not agreed to by all the social partners that participated in the discussions, and that one employers’ organization and three confederations chose not to sign the position paper. That said, the Committee notes the Government’s statement that the Act is a legislative transcription of the joint position paper.
3. 925. The Committee notes that, according to the Government, the Act is one of the mainstays of its labour law reforms and sets out to modernize the system of representativity of trade unions and of validating collective agreements. The Act does away with the unchallengeable presumption of representativity that was the rule in the past and founds trade union representativity instead on modern criteria which are reassessed periodically and irrefutably, notably on the basis of voting strength in elections. According to the Government, the earlier system was justified in the historical context of the post-war period as a means of facilitating the development of trade unionism in the enterprise and of avoiding multiple and systematic disputes. Nowadays, however, the idea that indefinite union representativity can be conferred on certain organizations by the State is no longer understood by the rank and file and can even contribute to a sense of marginalization. The Committee notes the Government’s assertion that the Act is altogether in line with Paragraph 3 of ILO Recommendation No. 163, which provides that measures adapted to national conditions should be taken so that representative employers’ and workers’ organizations are recognized for the purposes of collective bargaining, and so that in countries in which the competent authorities apply procedures for recognition with a view to determining the organizations to be granted the right to bargain collectively, such determination is based on pre-established and objective criteria with regard to the organizations’ representative character, established in consultation with representative employers’ and workers’ organizations.
4. 926. The Committee notes that according to the complainant, on the contrary, the Act violates in many respects the provisions of Conventions Nos 87, 98 and 135 ratified by France, as well as other instruments dealing with freedom of association and the right to bargain collectively. The complainant recalls that the legislation that was previously in force, though questionable in certain respects, had at least made it possible for France to enjoy an exceptionally high degree of coverage by collective agreements (97.7 per cent of employees in 2004). The Committee notes the complainant’s contention that this can be explained by the fact that, in the past, trade union representativity was based not only on general criteria but also on the presumption of representativity conferred at the industry or enterprise level on organizations affiliated to first-tier organizations. Since 1966, five confederations have benefited from this presumption of representativity at the national and interoccupational level: the CFDT, CFTC, CFE–CGC, CGT and CGT–FO. Some trade unions that are not affiliated to these confederations have acquired their representativity at the industry or sectoral level.
5. 927. The Committee notes that the Act has done away with the presumption of representativity, which is now determined by voting strength in occupational elections. Trade unions must henceforth meet the criteria set out in sections L2121-1 et seq. of the Labour Code: respect for republican values; independence; financial transparency; at least two years’ establishment in the geographical and occupational area of the enterprise; influence attested by activity and experience; membership and contributions; and share of votes cast (at least 10 per cent in the first round of the most recent elections for the permanent members of the works committee, for the single staff delegation or, in their absence, for the staff delegates, and initially 8 per cent of votes cast in occupational elections). In addition, there is a specific criterion for each level: an evenly spread territorial presence at the sectoral level, and simultaneous representativity in the industrial, construction, trade and services sectors at the national and interoccupational level (sections L2122-1, L21225, L2122-6 and 2122-9 of the Labour Code).
6. 928. The Committee notes that, according to the CGT–FO, the new criterion regarding voting strength could have the effect of denying many unions that have signed collective agreements the right to bargain collectively, as a result of subsequent occupational elections whose outcome might depend on a variety of transient factors and which might thus prevent them from attaining the minimum representativity requirement. Moreover, the new system is liable to generate situations where an organization is recognized as being representative at the national or interoccupational level but may nevertheless find it difficult to establish its presence at the enterprise or industry level. According to the
   • CGT–FO, the new Act would merely undermine and reduce freedom of association and the right to bargain collectively.
7. 929. The Committee also notes the Government’s observation that the Act simply reflects a proposal contained in the joint position paper adopted on 9 April 2008, which called for new criteria for representativity. The minimum threshold, laid down by section L2122-1 of the Labour Code, of 10 per cent of votes cast in occupational elections for a union to be considered representative is an objective criterion, inasmuch as its legitimacy is acquired by vote. The Government adds that, by placing all the trade unions on an equal footing from the date on which the occupational elections are held, the Act does not in any way undermine the freedom to establish trade unions or for such unions to operate at the enterprise level and meets the objective of promoting collective bargaining in accordance with Article 5 of Convention No. 154.
8. 930. The Committee notes the views of the employers’ organizations which signed the joint position paper communicated by the Government in January 2011. It notes that MEDEF emphasizes that in its view the Act of 20 August 2008 represents a qualitative leap in the history of social dialogue in France and that the procedure whereby it was formulated was exemplary since the social partners had the possibility to negotiate and reached a joint position, after nearly one year of negotiations. MEDEF observes that the Act has strengthened the legitimacy of the players and opened the area of negotiations to organizations providing a more legitimate reflection of the employees who they represent. MEDEF also recalls that the Act of 2008 contains a review clause and that an appraisal of its positive effects will therefore be conducted. The Committee also notes that the CGPME declares that it fully endorses the Government’s reply and considers that it is neither proven nor established that the Act of 20 August 2008 infringes the provisions of ILO Conventions Nos 87, 98, 135 and 154, which have been ratified by France.
9. 931. With regard to the means that the new system affords non-representative organizations to represent at least their own members or the workers who have backed them, the Committee notes the complainant’s opinion that steps should be taken to ensure that organizations deemed non-representative in terms of elections, and which are thus excluded from engaging in collective bargaining, are at least able to make their claims known to the parties to the negotiations and, specifically, to the employer. One option they propose would be for nonrepresentative organizations to be invited to take part in consultations held prior to the negotiations themselves. The Committee also notes the Government’s response, to the effect that Recommendation No. 163 mentions several ways of promoting collective bargaining, one of which is the recognition of workers’ and employers’ organizations. According to the Recommendation, the right to engage in collective bargaining may be restricted to representative trade unions. Moreover, prior to the Act of 20 August 2008, the right to negotiate collective labour agreements was likewise limited to representative trade unions. Lastly, the Government refers to the ruling of the Supreme Court of Appeal on 14 April 2010, that States are free to restrict the right to engage in collective bargaining for representative trade unions, which is not prohibited by ILO Conventions Nos 98 and 135. In addition, according to the Supreme Court of Appeal, the fact that the employees at professional elections participate in the determination of trade unions to represent them in collective bargaining does not weaken the trade union representatives for the benefit of elected representatives, each retaining their own responsibilities. Furthermore, the Committee notes that the Supreme Court of Appeal referred the matter to the Constitutional Council, which issued a decision dated 7 October 2010 stating that section L2122-2 of the Labour Code, setting the threshold for trade union representativity in enterprises and institutions at 10 per cent of the votes cast in occupational elections, is consistent with the Constitution.
10. 932. In order to understand the present case better, the Committee feels it might be useful to recall that, broadly speaking, the system of labour relations considered here is based on the notion that workers can be represented by several trade unions at every bargaining level, from the enterprise to the interoccupational level. Even though the most representative organizations may have precedence in terms of collective bargaining, the system does not depend on the status of bargaining agent being granted exclusively to a single organization that has been mandated to negotiate with the employer on behalf of the entire workforce. Under the system considered here, therefore, the employer may, in order to reach an agreement at the enterprise level, engage in negotiations with one or more workers’ organizations. The same applies to occupational and interoccupational negotiations.
11. 933. With regard to the recognition of representative organizations that are empowered to bargain collectively, the Committee recalls, in the first place, that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 950]. The Committee has in the past also recalled that the fact of establishing in the legislation a percentage in order to determine the threshold for the representativeness of organizations and grant certain privileges to the most representative organizations (in particular for collective bargaining purposes) does not raise any difficulty provided that the criteria are objective, precise and pre-established, in order to avoid any possibility of bias or abuse [see Digest, op. cit., para. 356]. As for the rights of non-representative unions, minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim [see Digest, op. cit., para. 359].
12. 934. Regarding the process of change in the system of occupational relations as a whole, the Committee observes that the system that prevailed prior to the adoption of the Act of 20 August 2008 functioned for many years on the basis of criteria of presumed or attested representativity, resulting in an exceptionally high level of coverage by collective agreements. The Committee observes that the Government initiated the reform of the existing system in consultation with the employers’ and workers’ representative organizations, and that it recognizes that the Act was adopted in the light of a joint position paper signed by some of those organizations. Welcoming the spirit of consultation that the Government has demonstrated, yet obtaining the unresolved differences of opinion which resulted in the present case, the Committee encourages the Government to continue to promote dialogue which gives the fullest possible effect to the views of all the organizations. In this regard, the Committee welcomes the establishment by the Act of 20 August 2008 of a High Council for Social Dialogue (HCDS) which comprises all representative trade unions at the national and interoccupational levels, including the complainant in this case, representatives of employers’ organizations and representatives of the Ministry of Labour. It observes that the HCDS has met several times since the promulgation of the Act and will continue to meet on a regular basis up to 2013 to discuss any issue that might have an impact on the assessment of union voting strength.
13. 935. The Committee notes that the CGT–FO challenges the new legal requirement that trade union delegates be appointed from among the candidates in occupational elections who obtain at least 10 per cent of the votes cast in the first round of the most recent elections to the works committee (section L2143-3 of the Labour Code). The complainant believes that this requirement restricts the freedom of workers’ organizations to elect their representatives freely and to organize their management and activities without intervention by the public authorities, in accordance with Article 3 of Convention No. 87. The Committee takes note of the judgement dated 20 May 2011, issued by the Metz city court (attached to the complaint), to which the complainant organization referred, regarding a case in which, despite the fact that a list of candidates for election to an enterprise committee had obtained a number of votes clearly higher than the required proportion, which is set by law at 10 per cent (17.2 per cent of the 209 votes cast by 262 employees registered), the enterprise contested the union in question’s appointment of its representative on the grounds that he had not been included on the list of candidates for election chosen by the staff. The Committee notes that the court judged null and void the union’s appointment of its delegate on grounds that section L2143-3 of the Labour Code must be subject to narrow interpretation in order not to allow trade unions to distort the law and appoint whoever they wish, irrespective of the votes cast by the workers. The Committee notes that, according to the complainant organization, given that the law clearly stipulates that a union delegate can only be a person who has been appointed by his or her employee peers, the court did not distinguish between, on one hand, the freedom of the union to elect its own representatives by an internal vote held among its members, and election of company committee delegates by all employees, including those who are not union members or are members of a different union. Also, the role of the union delegate responsible for representing the union within the company, particularly in the context of collective bargaining, is clearly separate from that of the staff representative in an enterprise committee, who does not have a role in collective bargaining and whose functions are related to the management of social and cultural activities and information on the economic situation of the enterprise. Furthermore, the Committee notes the concern expressed by the CGT–FO that the judgement could lead, in certain cases, a trade union to have to appoint a representative from among other candidates (including from another trade union) and, only in the absence thereof, one of its own members. Lastly, the Committee takes note of the reservation expressed by the CGT–FO regarding the other serious consequences to which that interpretation of the law could lead, as demonstrated by recent events. The complainant organization raised the issue of a union delegate who stood as a candidate in a political election acted in violation of the statutes of his union. The union in question was thus obliged to dismiss him from his union duties and replace him. The CGT–FO points out that such a situation could result in a union, which has taken a decision to ensure respect for its statutes, finding itself without legal representation for collective bargaining within the enterprise.
14. 936. The Committee observes that the complainant organization also refers to a decision issued by the Court of Cassation, dated 29 June 2011, which uses the same reading of section L2143-3 of the Labour Code, recalling that only when a union no longer has a candidate in the enterprise or establishment who fulfils the condition of having stood for election and having received more than 10 per cent of the votes can it appoint a delegate from among the other candidates, or in the absence thereof, from among its members within the enterprise.
15. 937. According to the complainant, the duration of the union delegates’ mandate stipulated in the Act is a further restriction on trade unions’ freedom of choice in managing their affairs and electing their officials. In the complainant’s opinion, the four-year period stipulated in the Act is much too long for organizations deemed to be representative to be granted exclusive rights in collective bargaining, and it therefore suggests the possibility of reassessing the representativity in the enterprise before the end of that period. This possibility would serve as a guarantee offsetting the granting of exclusive collective bargaining rights.
16. 938. The Committee notes that the Government makes a distinction between the duration of the mandate of elected members of works committees or staff delegates and the period over which a union’s voting strength in elections is measured, which is a four-year cycle at the sectoral, national and interoccupational level. Although the duration of the mandate of elected members of works committees and of staff delegates was increased to four years under Act No. 2005-882 of 2 August 2005, a sectoral agreement, group agreement or enterprise agreement, as appropriate, can determine that the mandate of staff delegates and of staff representatives on works committees (at enterprise or establishment level), central works committees and group committees may be from two to four years. To determine the representativity of trade unions at the enterprise, establishment or group level, voting strength can thus now be measured over a shorter period than four years.
17. 939. The Committee notes the Government’s emphasis on the fact that the maximum four-year mandate for staff representatives seemed reasonable to the social partners who signed the joint position paper since transparency regarding terms of office and continuity with respect to negotiators are needed to create high-quality social dialogue. The Committee notes the Government’s view that any holding of early elections would have to be justified by objective criteria (for example, an increase or reduction in the workforce, restructuring, etc.), since a shift in the balance of power among unions would be difficult to define in objective terms. The Committee notes the indication that, among the grounds justifying such elections, the Labour Code specifies certain circumstances arising, for example, from restructuring of the enterprise or establishment (sections L2314-28 and L2324-26 of the Labour Code). Hence, even though a union can now request the opening of negotiations on this subject, the signing of any agreement depends on the unanimous consent of all the representative unions in the enterprise, along the lines of an election held to appoint additional delegates (apart from those currently holding office) to take account of any increase in the size of the workforce between two elections. The Committee notes that the Supreme Court of Appeal considered, in a ruling of 13 October 2010, that an additional election can only be held if provision is made for it through a collective agreement signed by all the unions present in the enterprise.
18. 940. The Committee notes that, in the Government’s view, the holding of early elections is a serious action that calls into question the mandates of the elected representatives already holding office. Allowing a single trade union acting alone to call for early elections would therefore entail a number of risks, by giving any union – especially a minority or non-representative union – such a prerogative, and would undermine the position of elected staff representatives already in office. The Government considers that failure to establish objective criteria relating to variations in the workforce or changes in the legal status of the enterprise in order to open negotiations with a view to early elections would run counter to the obligation of fairness towards the electorate, who cast their votes in the light of a given situation (especially a specific term of office determined in advance). The Government also feels that calling into question existing electoral mandates might create an unstable climate of constant campaigning for elections which would undermine the continuity required for accomplishing a mandate and distort the perspective needed for evaluating negotiated collective agreements and union action in the enterprise. Finally, the frequent calling into question of mandates would also prevent voters from evaluating in the long term whether representatives had performed their duties and discharged their mandates satisfactorily.
19. 941. The Committee also notes the observations made by the CFDT, included in the Government’s reply which considers that, at the time elections are held, unions and employees are aware of the duration of the mandate that will follow the elections. Interrupting the mandate before its normal expiry date would be tantamount to changing the conditions for holding the elections and calling into question the contract entered into with the voters. According to the CFDT, under the current legislation a significant change in the size of the enterprise or the resignation of a majority of elected representatives may lead to the holding of new elections. However, the demand of the complainant aimed at enabling a non-representative union to call for early elections would appear to be completely unjustified since this would undermine the scope and legitimacy of the election and thus weaken any union sponsoring a list of candidates.
20. 942. The Committee further notes the Government’s statement that the right of organizations to elect representatives of their own choosing refers not to the freedom of representation of trade unions in collective negotiations but to the right to elect their leaders freely. According to the Government, the right of trade unions to conduct their activities in full freedom must therefore be interpreted as the right to engage in lawful activities in defence of their occupational interests. Hence, the condition imposed by the Act concerning the choice of union delegates from among the candidates who have gained at least 10 per cent of the votes in elections does not constitute a form of intervention that is liable to restrict or impede the lawful exercise of the right of trade unions to elect their representatives in full freedom and to organize their administration and activities, within the meaning of Article 3 of Convention No. 87. On the contrary, the purpose of this condition is to strengthen the link between workers and their representatives who have the authority to negotiate and sign collective agreements.
21. 943. The Committee notes the Government’s indication that collective agreements in France do not apply solely to unionized employees but grant wider benefits to all employees covered by their scope; employees in an enterprise might therefore not be acquainted with the person who had signed the agreement binding them all and who had been under no obligation to justify his actions as negotiator to them. Hence, to strengthen the position of collective bargaining and bearing in mind that the signing of an enterprise or establishment agreement by a union delegate is binding on the whole work unit, it appeared necessary to reinforce the legitimacy of the union delegates themselves.
22. 944. The Committee notes that the Government bases its position on the ruling of the Supreme Court of Appeal, which states that “the obligation for representative unions, in choosing a union delegate, to give priority to the candidates who obtained at least 10 per cent of the votes cast does not conflict with any prerogatives that are inherent in freedom of association and, inasmuch as it helps to ensure that the employees themselves determine who is best equipped to defend their interests in the enterprise and to engage in negotiations on their behalf, it does not constitute arbitrary interference in the functioning of the trade union”. The Government also recalls that the Constitutional Council, in a decision of 12 November 2010, confirmed that section L2143-3 of the Labour Code concerning new conditions for the appointment of union delegates is in conformity with the French Constitution. The Council considered “that, by imposing the obligation on representative unions, in choosing union delegates, to give priority to the candidates who obtained at least 10 per cent of the votes cast in the first round of the latest occupational elections, section L2143-3 involves employees in the appointment of the persons recognized as being the best equipped to defend their interests in the enterprise and engage in negotiations on their behalf; that, in adopting this section, the legislator has not disregarded the principle of freedom of association set forth in the sixth subparagraph of the Preamble of 1946”.
23. 945. The Committee notes the Government’s view that, under the provisions of the Act, unions are totally free to choose the candidates which they wish to nominate for election and, consequently, the persons which they may subsequently appoint as union delegates. Regarding the judgment of 20 May 2011 of the Metz city court and the decision of 29 June 2011 of the Court of Cassation whereby both instances annulled, pursuant to section L2143-3 of the Labour Code, the designation of union representatives who were not chosen from candidates with at least 10 per cent of the votes cast, the Committee notes the Government’s view that the judge rightly observed and sanctioned attitudes that had the effect of circumventing the legal requirements. The Committee also notes that with regard to the situation described by the complainant in which the latter would be forced to revoke a representative who, for example, behaved in violation of the statutes of the union, the Government considers that it is not likely to limit or impede the lawful exercise of the right of organizations to elect their representatives as it does not prevent the trade union from appointing another representative, as long as the new person meets the requirements of section L2143-3 of the Labour Code.
24. 946. The Committee further notes the views of the other trade unions on this matter. The Committee notes the CGT’s indication, included in the Government’s reply, that the organizations which signed the joint position paper considered that this did not constitute a constraint which jeopardized the freedom of unions to appoint their delegates. In the vast majority of situations – apart from certain enterprises where the level of unionization is very high and unions can avoid combining mandates for election and representation – union delegates are already likely to stand for election. In general, the CGT sees no major difference between voting strength in relation to an individual candidate and in relation to the whole list to which he belongs. Setting an individual threshold for voting strength did not therefore seem a de facto constraint on the freedom of a representative union to appoint the delegate of its choice. The Committee notes the CFDT’s view, included in the Government’s reply, that the freedom of appointment conferred on unions is actually considerable, especially as the vast majority of candidates put forward by a union that will be recognized as representative will generally have attained or exceeded 10 per cent of the votes. The slight constraint of appointing a person who has been a candidate simply obliges the union to think ahead regarding who it wishes to represent it when submitting the list of candidates for election. But this constraint is more than compensated for by the strengthening of the links between the employees and the union, which consolidates its legitimacy and freedom. In the CFDT’s view, given that the union acts on behalf of the employees, particularly when it performs its role as negotiator, it is normal and useful for the employees to be acquainted with the person who has the authority to conclude collective agreements which concern them directly.
25. 947. The Committee recalls that freedom of association implies the right of workers and employers to elect their representatives in full freedom and to organize their administration and activities without any interference by the public authorities [see Digest, op. cit., para. 454]. The right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest, op. cit., para. 391]. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, conditions of eligibility or the re-election or removal of representatives. Without wishing to question the legitimacy of this system for election of trade union representatives to works committees, the Committee considers that the right of workers’ organizations to organize their administration and activities in accordance with Article 3 of Convention No. 87 includes the freedom for organizations recognized as representative to choose their union delegates for the purpose of collective bargaining. The Committee also considers that trade unions should have the possibility of being assisted by advisers and expects the system established on the basis of occupational elections not to exclude this possibility. In light of the above, the Committee invites the Government to consider the possibility, in consultation with the social partners in the framework of the HCDS, to revise the legislation in light of this principle.
26. 948. Regarding the duration of the mandate of union delegates and the frequency of the assessment of trade union voting strength, which the Act stipulates should cover a four-year cycle at the occupational branch level and national and interoccupational levels, the Committee notes that the duration of the mandate of union delegates can be shortened by agreement and that the measurement of voting strength for determining union representativity at the enterprise, establishment or group level can accordingly cover a shorter period than four years. The Committee also notes the possibilities established by the legislation in force with regard to the holding of new elections following objective changes in the size of the workforce, restructuring, etc. Moreover, the Committee duly notes the concerns expressed by the organizations which signed the joint position paper regarding the need to ensure a degree of stability in the occupational election process. However, the Committee has had occasion to underline the importance of certain guarantees being ensured in cases where representative unions are recognized as bargaining agents in a unit. The Committee invites the Government to ensure that the HCDS will review the sufficiency of the legislation in this regard within the framework of its assessment of the impact of the new legislation.
27. 949. As regards branch representatives of non-representative trade unions, the Committee notes that under the new Act their mandate would expire at the end of the first occupational elections to be held following their appointment since the trade unions that appoint them are not recognized as being representative within the enterprise. They can then not be reappointed as union branch representatives until six months before the next occupational elections to be held in the enterprise (section L2142-1-1 of the Labour Code). The complainant denounces the fact that the Act could prevent the establishment of a newly created trade union in an enterprise in the event of its appointing a union branch representative but failing to win enough votes in the subsequent occupational elections. Moreover, in the complainant’s view, the Act’s stipulation that such a representative necessarily loses his or her mandate would constitute interference in the exercise of trade union duties and violate the union’s internal decision-making procedures.
28. 950. The Committee notes the Government’s reply to the effect that the creation by law of union branch representatives is intended to permit non-representative unions which meet various conditions in enterprises with over 50 employees to establish themselves and operate in those enterprises, with an eye to the next occupational elections. The appointment of a representative can help the organization concerned to attain the threshold of 10 per cent of votes cast and thus be recognized as representative within the enterprise. The Government states that that is the objective sought by section L2142-1-1 of the Labour Code which states: “The mandate of the union branch representative expires following the first occupational elections to be held after his appointment, since the union that appointed him is not recognized as representative within the enterprise. Any employee who loses his mandate as union representative in this way may not be reappointed as a union branch representative until six months preceding the next occupational elections to be held in the enterprise”.
29. 951. The Committee notes the Government’s indication that the social partners who signed the joint position paper considered that any representative who was unsuccessful in attaining the 10 per cent threshold needed for his union to be recognized as representative would be unlikely to secure representativity for his union at the next occupational elections. It therefore seemed logical to them that another person should be appointed as union branch representative with a view to the possible formulation of a new electoral strategy. The union thus remains free to appoint a different employee as union branch representative. The Committee observes that the Government emphasizes that the Act of 20 August 2008 has introduced a measure of flexibility vis-à-vis the joint position on this precise point: the employee originally appointed may be reappointed as union branch representative as from six months prior to the subsequent occupational elections in the enterprise.
30. 952. The Committee notes that the creation of a union branch representative is intended to permit unions that are not representative to establish themselves and operate in those enterprises, with an eye to the next occupational elections. Although it considers that such measures may contribute to the development of collective bargaining, the Committee is of the opinion that the choice of union branch representative, too, should respect the same principles of autonomy vis-à-vis the public authorities as are laid down in Article 3 of Convention No. 87. The Committee considers that, pursuant to Article 3 of Convention No. 87, the appointment and duration of the mandate of a union branch representative should be freely determined by the union concerned, in accordance with its constitution. The Committee considers that it is for the union to decide on the person who is best equipped to represent it within the enterprise and to defend its members in their individual claims, even when that person fails to obtain 10 per cent of the votes cast in occupational elections.
31. 953. With regard to the possibility of engaging in collective bargaining, the Committee takes note of the provisions in the Act to the effect that, in enterprises with over 200 employees that have no union delegate (i.e. where there is no representative trade union), agreements may be concluded with the staff representatives or, where there are none, with an employee who has been duly mandated by a trade union which is representative at the sectoral level in enterprises where elections for staff representatives have been officially declared null and void. The Act stipulates that an agreement that has been concluded under this derogation procedure enters into force only after it has been signed by duly elected trade union officials who obtained a majority of votes cast in the most recent elections and it has been validated by a joint sectoral committee. Moreover, where there is no union delegate or where the occupational elections have been declared null and void, agreements that have been negotiated with an employee who has been mandated by a trade union which is representative within the sector must be approved by a majority of the votes cast by the employees of the enterprise concerned. The Committee notes further that, as a last resort, the Act provides for the possibility of negotiating, at the level of an enterprise with over 200 employees, with a representative of a non-representative trade union where there is no union delegate or where the elections have been declared null and void, provided that the validity of the agreement reached is confirmed by a majority vote of the employees concerned.
32. 954. The Committee notes the complainant’s reference to the Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), which give precedence to workers’ organizations as one of the two parties to collective negotiations, referring to unorganized workers only when no such organization exists (Collective Agreements Recommendation, 1951 (No. 91)). The Committee notes the complainant’s fear that the Act might have the effect of weakening the situation of trade unions in the enterprise, citing instances where it would allow elected representatives, or even employees duly mandated by representative trade unions in the sector concerned, to negotiate collective agreements even if representative unions already exist in the enterprise. The complainant considers that the validation of an agreement concluded by a union branch representative appointed by a trade union that is representative at the national and interoccupational level, as provided for in the Act, would be open to challenge from the standpoint of Convention No. 98 and of the principle laid down by the Committee on Freedom of Association to the effect that “in so far as the persons who conclude collective agreements are trade union representatives, the requirement that they be approved by an absolute majority of the workers involved may constitute an obstacle to collective bargaining which is incompatible with the provisions of Article 4 of Convention No. 98”.
33. 955. The Committee notes the Government’s emphasis on the fact that the purpose of the Act is primarily to take on board the difficulty of engaging in collective bargaining in small and medium-sized enterprises, owing to the very limited representation of the employees. The Act broadens and identifies more clearly the framework within which collective bargaining can be undertaken with elected representatives or duly mandated employees. Under the earlier Act No. 2004-391 of 4 May 2004, which had already introduced the possibility of an extended sectoral agreement providing for collective agreements in enterprises with no union delegate to be negotiated and concluded by elected works committee members, by staff delegates or even by duly mandated employees should no representative be forthcoming from occupational elections, very few agreements were signed at the sectoral level (less than 20 in 2008). The Committee notes the observation that those who had signed the joint position considered that the requirement that there be a prior sectoral agreement might explain why negotiations of this kind never really caught on and chose to do away with the requirement for prior authorization by extended sectoral agreement while defining strictly the conditions and procedure for resorting by derogation to this kind of collective bargaining. The first condition for engaging in this type of bargaining is that there should be no union delegate in the enterprise, hence no representative trade union. In enterprises with over 200 employees that have no union delegate, agreements may be concluded with the staff representatives or, where there are none, with an employee who has been duly mandated by a trade union which is representative at the sectoral level in enterprises where elections for staff representatives have been officially declared null and void. In line with the joint position, the Act stipulates that an agreement that has been concluded under the derogation procedure enters into force only once it has been signed by duly elected trade union officials who obtained a majority of votes in the most recent elections and has been validated by a joint sectoral committee. Moreover, where there is no union delegate or where the occupational elections have been declared null and void, agreements that have been negotiated with an employee who has been mandated by a representative trade union within the sector must be approved by a majority of the votes cast by the employees of the enterprise concerned.
34. 956. Finally, the Committee notes the Government’s observation that the example cited by the complainant is that of a trade union that does not wish to appoint a union delegate from among those of its candidates who obtained at least 10 per cent of votes cast. If there is no union delegate, the organization can have no representative present during the negotiations, which are then liable to be blocked. If a union refuses to appoint one of its candidates who obtained more than 10 per cent in the vote, that is a sovereign decision of the organization concerned, which thus places itself in a situation where it cannot exercise the powers to which it is entitled by virtue of its representativity. When this happens, the employer still has the option of engaging in collective bargaining with elected representatives or with an employee who has been duly mandated by a trade union to negotiate an agreement that will be validated by a vote of the workforce. In the Government’s opinion, such a procedure is in full conformity with the definition of collective agreements as set out in Paragraph 2(1) of ILO Recommendation No. 91. This bargaining option takes precedence over negotiations with a union branch representative (section L2143-23 of the Labour Code). Since the latter is representing a trade union that has not met the minimum requirement of 10 per cent of the votes cast by the employees, it is only logical that negotiations should only be possible when all other means of bargaining collectively have been exhausted. That is precisely the intention of the Act, which dismisses the possibility of negotiating with a union branch representative so long as a union delegate is present or there exists the option of negotiating with an elected or duly mandated employee.
35. 957. While duly noting the strict conditions imposed by the Act on resorting to collective bargaining by derogation, the Committee wishes to draw the Government’s attention to the need to ensure that the implementation of those provisions does not in practice lead to a tendency to resort more systematically to negotiating with elected or duly mandated representatives to the detriment of negotiations with union delegates.
36. 958. Furthermore, the Committee observes that the new legislation establishes new rules for validating agreements, notably by introducing an additional condition for the validation of an enterprise or establishment agreement that makes its validity dependent on its being signed by one or more trade unions which have won at least 30 per cent of the votes cast in interoccupational elections (sections L2232-2, L2232-6 and L2232-12 of the Labour Code).
37. 959. The Committee notes that the complainant organization challenges these provisions on the grounds that they are liable to give rise to situations where organizations deemed legally representative under the Act – and therefore theoretically empowered to negotiate and conclude agreements – are in practice not allowed to sign those agreements because they have not obtained 30 per cent of votes cast that are required under the Act. Moreover, the reasons given for the provision in the Act and in the application of the circular of 13 November 2009 explicitly refer to the prospect of collective agreements eventually being adopted by majority vote (50 per cent), in which case this provision of the Act relating to the validity of agreements would be even more in conflict with Convention No. 98. According to the CGT–FO, a threshold of 30 per cent, and eventually 50 per cent, in a country where the pluralism of trade unions has traditionally been the rule, would inevitably reduce the likelihood of their being validated. It contends that these provisions go against the objective of promoting the broadest possible development and utilization of voluntary collective bargaining procedures called for in Convention No. 98. In the past, there was no such requirement for validation. It was only when the option of derogating from the more favourable terms of sectoral collective agreements was introduced at the enterprise level that a procedure for validating works agreements was established in Act No. 2004-391 of 4 May 2004. However, validation was still dependent on the signatories to the sectoral agreement, whose decision was invariably taken on the basis of lack of opposition from one or more majority trade unions (with 50 per cent representativity).
38. 960. The Committee notes the Government’s statement that the Act’s provisions relating to the validity of agreements merely reflect the joint position of the social partners in opting for an intermediate stage before moving toward the conclusion of agreements by absolute majority – an issue that has been postponed until future negotiations. The Government goes on to mention that, in the case of enterprise, sectoral and interoccupational agreements, their validity is dependent, on the one hand, on their having been signed by one or more representative trade unions which alone or together obtained at least 30 per cent of the votes cast in the most recent occupational elections at the level concerned and, on the other, on the absence of any opposition by representative trade unions which obtained a majority of votes cast. These rules entered into force on 1 January 2009 for enterprises and will do so in 2014 for sectoral and interoccupational agreements. In conclusion, the Government states that early data available on the results of negotiations at the enterprise level suggest that there was no apparent decline in the level of collective bargaining or in the number of collective agreements concluded in 2009. On the contrary, the slight increase in the number of agreements signed in recent years appears to have continued.
39. 961. The Committee wishes in the first place to recall that, concerning specifically the question of exclusive representation in collective bargaining, systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest, op. cit., para. 950]. It considers that the principle of promoting collective bargaining as laid down in Convention No. 98 is compatible with both systems, and that legislation that sets a threshold for the validation of collective agreements goes against neither Article 4 of that Convention nor the objective of promoting the broadest possible development and utilization of voluntary collective bargaining procedures, especially if the threshold has been set in consultation with the social partners and if it is not too high.
40. 962. The Committee notes the Government’s indication that the follow-up to the Act of 20 August 2008 complemented by the Act of 15 October 2010 (which aims to enable employees working in very small enterprises to participate in the assessment of trade union voting strength) and their implementing regulations is the subject of special attention from the Government in conjunction with all the social partners, who are closely associated with this follow-up. The Committee further notes that all draft implementing legislation arising from these Acts, including with respect to any eventual transition to the adoption of collective agreements by majority vote, must be referred to the HCDS prior to adoption. The HCDS is due to issue an opinion in 2013 on the results of the assessment of union voting strength and on any issue that may have an impact on the assessment. The HCDS is empowered to submit to the Ministry of Labour the conclusions to be drawn from the implementation of the Act and also the conclusions to be drawn from the report of Parliament which must be presented before the end of 2013 (section 16 of the Act).
41. 963. The Committee invites the Government, within the framework of the HCDS set up for this purpose, to review the various points to which its attention has been drawn and to take appropriate steps should issues or obstacles affecting freedom of association and the right to collective bargaining come to light in the context of the application of the legislation. It requests the Government to keep it informed of the conclusions drawn and opinions issued by the HCDS.

The Committee's recommendations

1. 964. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee invites the Government, within the framework of the HCDS set up for this purpose, to review the various points to which its attention has been drawn and to take appropriate steps where issues or obstacles affecting freedom of association and the right to collective bargaining have been identified in the context of the application of the Act of 20 August 2008 and its implementing texts. It requests the Government to keep it informed of the conclusions drawn and opinions issued by the HCDS.