Some paradoxes of French Labour Law

Transcription

1 Some paradoxes of French Labour Law Laurence Pinchou and Katarzyna Lipiecka NEXO Labour Law Department

2 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 - Tél: +33(0) Mob:

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

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

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 17/10/2014

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 17/10/2014

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. 17/10/2014

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 17/10/2014

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 17/10/2014

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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.

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

13 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?

14 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 17/10/ Avocat à Paris - Tél +33 (0)

15 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 - Tél: +33(0) Mob:

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 17/10/2014

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18 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 - Tél: +33(0) Mob: