1. Some paradoxes of French Labour Law Arnaud de Corbière Laurence Pinchou and Katarzyna Lipiecka NEXO Labour Law Department
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Introduction
Initial employer’s superiority in the employment contracts
Successive legislations granting rights for employees in order to counterbalance this dominance
Consequence : a system that is considered today as holding back employment and as being full of paradoxes
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3. Paradox 1:
French labour law specificities versus the increasing omnipresence of International labour law
French Labour rules are issued from various sources (law, case-law, collective bargaining agreements)
French labour law historical specificity has today to integrate rules issued by international organizations whose purpose is to unify Labour Law
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4. Structure of French Labour Law:
Body of constitutional rules
Preamble to the 1946 Constitution
Laws and regulations
Articles 34 and 37 of the Constitution
Articles L1 to L3 of the Labour code (employee's and employer's trade-unions should negotiate agreements constituting ground for bills
Case law and professional sources
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5. International labour law applied in France
International Labour Organisation (part of UN)
79 Conventions are in force in France and take precedence over intern laws
Council of Europe
European Convention of Human Rights ratified in 1974
European Court of HR : ex. Matelly c. France 2/10/14
European Social Charter
European Union
Treaties and directives / UE Court of Justice
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6. Articulation of French and International Labour law
Principle of the hierarchy of norms
The sources nearer to the top will overrule conflicting provisions found in lower sources
International law which take precedence over intern laws
French paradox: the more favorable rule
When 2 standards are applicable, the most favorable standard to employees has to be applied.
Codified in article L of the Labour Code
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7. Paradox 2:
Importance of collective negotiated law versus its concrete limits
Low number of members in French syndicalism (1.9 million)
Trade-unions have a direct influence on working conditions
The paradox of the French system is that collective agreements may be refused by employees concerning their own personal situation.
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8. Social partners under French Law
Definition
Association of people whose purpose is the defense of professional interests
Freedom of association recognized by the Waldeck-Rousseau law of 1884
Organization
A representative union is entitled to appoint a delegate in companies with more than 50 employees
They are protected by law against actions likely to hinder their functions and against dismissals
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9. French Trade unions: Employees representative’s trade unions
CGT, CFDT, CGT-FO, CFTC, CGE-CGC
Employer's trade-union
MEDEF, UNAPL
The criterias of representativeness :
Respect for republican values, Independence , Financial transparency , Minimum two years' seniority, Minimal audience, Influence , Contributions and sufficient audience in professional elections
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11. Limits of collective negotiated rights
Article L1 of the Labour Code : reforms are submitted to trade-unions prior to the establishment of the law
Limits to the supremacy of collective agreements
An employment contract must respect existing collective agreements but if a new collective agreement is negotiated, only more favorable provisions prevail
The employer cannot use collective bargaining agreements to modify existing employment contracts.
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12. Example of “agreement to preserve employment”
It is a new tool supposed to prevent economic dismissals (article L )
The goal is to temporary modify employment contracts by a reduction in the pay or a change in the working hours for the duration of the agreement
The agreement is negotiated by trade-union representatives but an employee can refuse the agreement
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13. French Labour law as a potential barrier to employment
Paradox 3:
French Labour law as a potential barrier to employment
The evolution of society has created a need for the state to ensure the livelihood of its citizens by interfering with the labor market in order to encourage employment
Does French Labor Law, by its rigidity and the cost it imposes on companies, create a barrier for employment?
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Examples of the inflexibility of French Labour Law detrimental for employment:
The undetermined term contract (CDI)
Companies today are reluctant to sign CDI contracts
The conclusion of a fixed-term contract (CDD) is only possible under strictly limited conditions and only in the cases specified by law
The employer must stick to the terms of the contract and the employee can object to any changes
Example of the mobility clause
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Termination of CDI
2 categories : dismissals for personal reasons and dismissals based on economic grounds
Personal : must be justified by a real and serious cause
Economic : results from a reduction or a change in the workforce due to economic difficulties or technical changes
Minimum amounts have to be paid to the employee
These strictly defined causes and procedures are accused to be the cause of the reluctance of companies to sign CDI
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16. Towards a liberal evolution of French Labour Law?
The contractual termination (“rupture conventionnelle”)
Allows employers and employees to agree to terminate the employment contract without fulfilling one the legal causes
The arrangement is formalized by a written agreement submitted to the Labour Administration
Minimum amounts have to be paid to the employee
The employee benefits from unemployment benefits
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The idea of the unique employment contract
Job insecurity in France is a major problem : 12% of employees have fixed-term or temporary contract
The idea of the unique employment contract is defended by some economists and some French political parties
It would be a CDI with a continuous accumulation of rights avoiding the effects of breach between contracts
All forms of fixed-term contracts would disappear
Some trade unions (CGT) are opposed to this project
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