Ministers’ Deputies
Notes on the Agenda

CM/Notes/1111/4.3b       25 March 20111

1111 Meeting, 6 April 2011
4 Human rights

4.3 European Social Charter
b. Collective complaint No. 56/2009 by the Confédération Française de l’Encadrement
(CFE-CGC) against France

Reference documents
CM/Del/Dec(2011)1104/4.3d and Report from the European Committee of Social Rights to the Committee of Ministers (document distributed by the Chair of the Deputies)


Action

To examine the appended draft resolution with a view to its adoption.


1. In application of Article 7 of the Protocol providing for a system of collective complaints, the European Committee of Social Rights transmitted to the Committee of Ministers on 13 September 2010 its report on complaint No. 56/2009, Confédération française de l’Encadrement CFE-CGC against France, containing its decision on the merits of the complaint.

2. By letter of 16 September 2010, the Chair of the Deputies transmitted the report of the European Committee of Social Rights to the representatives of the Contracting Parties to the Charter and the Revised Charter. This item was added to the agenda of the 1001st meeting of the Deputies (8 December 2010) when it was agreed to postpone it.

3. Appendix I to these Notes contains information on the collective complaints procedure.

4. The complainant organisation, Confédération française de l’Encadrement CFE-CGC (“CFE-CGC”), is a French trade union.

5. The CFE-CGC, referring in particular to Act No. 2008-789 of 20 August 2008 on the renovation of social democracy and reform of working time, claims that:

- the annual working time scheme, in particular the annual working days system, infringes the right to work provided by Article 1§1 of the Revised Charter in that it induces an increase in employees’ workload which has a detrimental effect on job creation;

- the annual working time scheme, in particular the annual working days system, infringes the right to reasonable working hours provided by Article 2§1 of the Revised Charter;

- the annual working time scheme, in particular the annual working days system, infringes the right to safe and healthy working conditions provided by Article 3 of the Revised Charter by reason of its adverse consequences on employees’ health;

- the annual working time scheme, in particular the annual working days system, infringes the right to a fair remuneration provided by Article 4§2 of the Revised Charter;

- the annual working time scheme, in particular the annual working days system, infringes the right to equal treatment in matters of employment and occupation without discrimination on the grounds of sex provided by Article 20, the right of workers with family responsibilities to equal treatment provided by Article 27 and the right not to be discriminated against in the enjoyment of the rights protected by the Revised Charter provided by Article E, in that this system and its “forfaits en jours” component apply only to certain employees and violate their rights to reasonable working hours and to a fair remuneration.

6. In its decision on the merits, the European Committee of Social Rights concluded that:

The relationship between European Union law and the European Social Charter

The fact that the provisions at stake are based on a European Union directive does not remove them from the ambit of the Charter (CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §30; see also, mutatis mutandis, Cantoni v. France, judgment of the European Court of Human Rights of 15 November 1996, §30).

The Committee is neither competent to assess the conformity of national situations with a directive of the European Union nor to assess compliance of a directive with the European Social Charter. However, when member states of the European Union agree on binding measures in the form of directives which relate to matters within the remit of the European Social Charter, they should – both when preparing the text in question and when transposing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter. It is ultimately for the Committee to assess compliance of a national situation with the Charter.

The European Court of Human Rights has found that in certain circumstances there may be a presumption of conformity of European Union Law with the European Convention on Human Rights (“the Convention”) by reason of a certain number of indicators resulting from the place given in European Union law to civil and political rights guaranteed by the Convention. Neither the situation of social rights in the European Union legal order nor the process of elaboration of secondary legislation would justify a similar presumption – even rebuttable – of conformity of legal texts of the European Union with the Social Charter. The Committee will review its assessment as soon as the factors which are currently missing insofar as the Charter is concerned have materialised. In the meantime, the Committee will examine on a case-by-case basis whether respect for the rights guaranteed by the Charter is ensured in domestic law.

In the instant case, whilst the European Social Charter has been ratified by all member states of the European Union and the Treaty on the European Union explicitly refers to it on several occasions, the preamble of this Directive does not make any reference to it.

Notwithstanding this oversight, the concerns underlying the text of this Directive undoubtedly show the authors’ intention to comply with the rights enshrined in the Charter. The practical arrangements agreed between member states of the European Union, if properly applied, do not prevent a concrete and effective exercise of the rights contained in particular in Articles 2§1 and 4§2.

However, the Directive at stake provides for many exceptions and exemptions which may adversely affect respect for the Charter. Thus, depending on how member states of the European Union make use of those exemptions and exceptions or combine them, the situation may be compatible or incompatible with the Charter.

The system of annual working days

– The claim concerning the impact of the annual working days system in terms of length of working time and remuneration of overtime work does not come within the scope of Article 1§1 of the Revised Charter (12 votes to 1)

Article 1§1 deals with the employment policy pursued by states in order to achieve full employment as reflected by evidence of legal or declaratory commitment to full employment as well as by figures demonstrating actual state effort, such as the scope of the employment measures implemented (e.g. number of participants as a proportion of all unemployed, average duration of unemployment spent before being offered participation in a measure), the amount of resources devoted to the various measures (e.g. total expenditure as a share of GDP, balance between active and passive measures). The Committee takes into consideration the output side of employment policy, notably the effects of different active measures (training, guidance, subsidised jobs, etc.) in terms of creating lasting employment. The Committee also takes account of constraints on state policy resulting from international economic trends and the complexity of effectively combating unemployment.

The statistics provided by the complainant union show a certain deterioration of employment during the period that followed the entry into force of the Act of 20 August 2008. However, the Committee does not consider that the causal link alleged by the CFE-CGC between the deterioration of employment and the annual working days system is pertinent and that the annual working days system is a decisive factor to explain this deterioration.

– Violation of Article 2§1 of the Revised Charter on the ground of the excessive length of weekly working time permitted and the absence of adequate guarantees under the annual working days system (unanimous)

The assessment of the annual working days system under the previous legislation, led the Committee to hold that the situation was in breach with Article 2§1 (CFE-CGC v. France, complaint No. 9/2000, decision on the merit of 16 November 2001, §§28 to 38, and CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§ 31 to 41). The Committee will thus examine whether the changes resulting from the Act of 20 August 2008 affect its previous assessments of the annual working days system.

Flexible measures regarding working time are not as such in breach of the Revised Charter (see in particular General Introduction, Conclusions XIV-2, p. 33). In order to be found in conformity with the Revised Charter, national laws or regulations must fulfil three criteria:

i. they must prevent unreasonable daily and weekly working time;
ii. they must operate within a legal framework providing adequate guarantees;
iii. they must provide for reasonable reference periods for the calculation of average working time.

i. Length of daily and weekly working time

The system of annual working days does not set any limit to the daily working time of staff concerned. Consequently, the right to a daily rest period of 11 hours provided for by Article L. 3131-1 of the Labour Code applies. Therefore, staff concerned cannot work for more than 13 hours on any day worked over the year, whatever the circumstances. This daily limit is in conformity with Article 2§1 of the Revised Charter.

There is no specific limit to weekly working time either in the annual working days system. Here again it is the minimum rest period provided for in Article L. 3132-2 of the Labour Code which sets a limit to weekly working time. The weekly rest period must be for 35 consecutive hours, i.e. 24 hours of weekly rest provided for by Article L. 3132-2 and 11 hours of daily rest in accordance with Article L. 3131-1. This means that, whatever the circumstances, staff concerned cannot work for more than 78 hours per week. The Committee is nevertheless of the view that this length of working time is manifestly excessive and therefore cannot be considered reasonable within the meaning of Article 2§1 of the Revised Charter.

ii. A legal framework providing adequate guarantees

In order to be in conformity with the Revised Charter, a flexible working time system must operate within a precise legal framework which clearly circumscribes the discretion left to employers and employees to vary, by means of a collective agreement, working time.

In the instant case, the annual working days system can only be adopted on the basis of collective agreements. Such agreements are required by law to lay down the annual working time and the main characteristics of the annual working time system.

However, the law does not require that collective agreements provide for a maximum daily or weekly limit. While they may in practice do so, such agreements are no longer required by law to specify the procedures to monitor the working time of the staff concerned, especially their daily working time and their workload. This is now essentially left to annual individual interviews with the employer (Article L. 3121-46) and an annual consultation of the staff committee (Article L. 2323-29). Therefore, the guarantees afforded by collective bargaining are not sufficient to comply with Article 2§1.

Further, collective agreements may be concluded at enterprise level. The possibility to do so regarding working time is in conformity with Article 2§1 only if specific guarantees are provided for. In this respect, the procedure for contesting collective agreements under Articles L. 2232-12, L. 2232-13 and L. 2232-27 of the Labour Code do not constitute such a guarantee since its use is too hypothetical. Consequently, the situation is not in conformity with Article 2§1.

iii. A reasonable period for the calculation of average working time.

In light of the findings above on the first two criteria, it is not necessary in the present case to pronounce on the third criterion.

– The claim concerning risks related to the organisation of work, in particular the working time within the framework of the annual working days system, does not come within the scope of Article 3 of the Revised Charter (12 votes to 1)

The provisions of the Revised Charter concerning working time are intended to protect workers’ safety and health in an effective manner. The arguments put forward by the CFE-CGC do not deal with the non-implementation of measures to improve health at work or reduce the number of accidents at work, but exclusively with risks related to the organisation of work, and more specifically to working time. It is true that no worker must be imposed an excessive length of working time and they must all receive rest periods adequate for recovering from the fatigue of work and which have preventive value in reducing risks of health impairment which could result from the accumulation of periods of work without the necessary rest (mutatis mutandis, Confédération Générale du Travail (CGT) v. France, complaint No. 22/2003, decision on the merits of 7 December 2004, §34). However, these aspects come within the scope of Article 2§1, and not Article 3.

– Violation of Article 4§2 of the Revised Charter on the ground of the remuneration of overtime work as provided for under the annual working days system (unanimous)

The legislation in force does not modify the situation of employees who come under the annual working days system regarding remuneration of overtime work, contrary to Article 4§2 (CFE-CGC v. France, complaint No. 9/2000, decision on the merits of 16 November 2001, §45; CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§57-59).

Article 4§2 does authorise exceptions to the right to an increased rate of remuneration for overtime work. These exceptions may apply to certain categories of public officials or managers, who must be few in number (Conclusions IX-2 p. 38).

The number of employees concerned and the nature of their duties clearly excludes them from the scope of the exceptions referred to in Article 4§2. They are therefore entitled for the right embodied in this article.

The number of hours of work performed by employees who come under the annual working days system and who do not benefit from a higher rate for overtime, under this flexible working time system, is abnormally high. The fact that an increased remuneration is now foreseen for the days worked which correspond to the days of leave which the employee under the annual working days system has relinquished cannot be considered sufficient under paragraph 2 of Article 4. In such circumstances, a reference period of one year is excessive.

– The claim under Article E taken in conjunction with Articles 20 and 27 of the Revised Charter regarding the impact of the working time and overtime work of employees coming under the annual working days systems is not founded (8 votes to 5)

Article E cannot be invoked on its own, and has to be combined with one of the rights guaranteed by Charter. This means that it does not constitute an autonomous right which can in itself provide independent grounds for a complaint (Autisme Europe v. France, complaint No. 13/2000, Decision on the merits of 4 November 2003, §51). However, the reasoning of the CFE-CGC relies solely on Article E without any direct link being established between the alleged discrimination and the requirements of Articles 20 and 27, which were raised jointly.

Incidentally, the impact of the impugned Act cannot be duly assessed without an in-depth examination of the situation in the light of the aims of the two above-mentioned Articles, i.e. the right to equal opportunities and treatment in employment and occupation without discrimination between workers based on gender or family responsibilities (see, mutatis mutandis, CFE-CGC v. France, complaint No. 9/2000, Decision on the merits of 16 November 2001, §54). The complainant union does not put forward any argument that would establish the existence of discrimination under Articles 20 and 27.

Costs and expenses

Whilst the Protocol does not regulate the issue of compensation for expenses incurred in connection with complaints, as a consequence of the quasi-judicial nature of the proceedings under the Protocol in case of a finding of a violation of the Charter, the respondent state should meet at least some of the costs incurred. Furthermore, the Committee of Ministers accepted the principle of such a form of compensation (CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§75-76).

Consequently, when such a claim is made, the Committee will examine it and submit its opinion regarding it to the Committee of Ministers, leaving it to the latter to decide how it might invite the Government to meet all or part of these expenses (CFE-CGC v. France, ibid., §77). For costs to be taken into consideration by the Committee, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, mutatis mutandis, judgment of the European Court of Human Rights, Nikolova v. Bulgaria, 25 March 1999, § 79).

In the instant case, the complainant union has produced their barrister’s bill as supporting document of the costs incurred for lodging the complaint which amount € 7 000. In the light of the case-file, the Committee considers that in the instant case the amount claimed by the complainant organisation which corresponds to the lawyer’s fees is excessive. Therefore, making its assessment on an equitable basis, the Committee considers that it would be fair to award the complainant union a lump sum of € 2 000. It thus invites the Committee of Ministers to recommend that France pay this sum to the complainant trade union.

* * *

7. It is recalled that in previous collective complaints where the European Committee of Social Rights found the situation not to be in conformity with the Charter, the Committee of Ministers has either adopted a recommendation to the state against which the complaint was lodged or adopted a resolution. The latter has usually been the case where the state concerned made a commitment to take specific measures to bring the situation into conformity with the Charter.

8. During the 1104th Meeting of the Deputies (2 February 2011, item 4.3d) the French delegation presented the reply by France to the conclusions of the European Committee of Social Rights (DD(2011)63). The Deputies asked the Secretariat to prepare a draft resolution for examination at one of their forthcoming meetings, taking into account the observations of France and its request to have a debate on the European Social Charter and the Revised Charter as well as its follow-up mechanism.

9. The Deputies are invited to adopt the appended draft resolution (Appendix II).

10. Moreover, the European Committee of Social Rights considered that it would be fair to award the complainant union a lump sum as compensation for the costs incurred. The Deputies held exchanges of views on the question of compensation for costs incurred by a complainant organisation at their 924th meeting (20 April 2005), 925th meeting (4 May 2005) and 1027th meeting (21 May 2008).

11. At their 1027th meeting (21 May 2008, item 4.3), the Deputies asked the Group of Rapporteur on Human Rights (GR-H) to examine the question of the reimbursement of the costs incurred by complainant organisations lodging a collective complaint in relation with the European Social Charter in general, while at the same time taking duly into account all consequences ensuing of such a policy.

12. Until such an examination is undertaken, the Deputies could decide in the case at hand not to accede to this request, taking into account the Resolutions adopted in respect of complaint No. 15/2003, European Roma Rights Centre (ERRC) against Greece, and complaint No. 16/2003, Confédération française de l’encadrement (CFE-CGC) against France (respectively, ResChS(2005)11 and ResChS(2005)7).

Financing assured: YES

DRAFT DECISION

1111th meeting – 6 April 2011

Item 4.3b

European Social Charter

b. Collective complaint No. 56/2009 by the Confédération Française de l’Encadrement
“CFE-CGC” against France

(CM/Dem/Dec(2011)1104/4.3d and Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies, in their composition restricted to the Representatives of the Contracting Parties to the European Social Charter or to the Revised European Social Charter in the Committee of Ministers2, adopted Resolution CM/ResChS(2011)…, as it appears at Appendix … to the present volume of Decisions <see Appendix II to the present Notes>

* * *

Appendix I

States participating in the procedure

1. Under the terms of the Protocol, only those states having ratified the European Social Charter are qualified to participate in this procedure. In the circumstances, the term “Social Charter” should be interpreted as the 1961 Charter and the 1996 Revised Charter. The following states would therefore be concerned (as of 1 March 2011): Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom.

Procedure

2. According to Article 9 of the Protocol:

      “1. On the basis of the report of the [European Committee of Social Rights], the Committee of Ministers shall adopt a resolution by a majority of those voting. If the [European Committee of Social Rights] finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter.

      2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the [European Committee of Social Rights] raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee”.

3. It follows from this provision that the collective complaints procedure ends by the adoption of a resolution.

4. However, in the case where non-satisfactory application of the Charter has been found, the Committee of Ministers may adopt a recommendation by a majority of two-thirds of those voting. The aim is to recommend to the state concerned the measures to be taken with a view to bringing the situation into conformity with the Charter.

5. In accordance with Article 10 of the Protocol, the European Committee of Social Rights shall examine the situation again within the framework of the reporting system. The Contracting Parties shall, in their next reports, provide information on the measures taken to give effect to the Committee of Ministers’ recommendation.

* * *

Appendix II

Resolution CM/ResChS(2011)…
Collective complaint No. 56/2009
by the Confédération Française de l’Encadrement “CFE-CGC” against France

(Adopted by the Committee of Ministers on ... 2011,
at the ... meeting of the Ministers’ Deputies)

The Committee of Ministers3,

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 4 May 2009 by the Confédération Française de l’Encadrement “CFE-CGC” against France;

Having regard to the report transmitted by the European Committee of Social Rights, in which it concluded:

The relationship between European Union law and the European Social Charter

The Committee is neither competent to assess the conformity of national situations with a directive of the European Union nor to assess compliance of a directive with the European Social Charter. However, when member states of the European Union agree on binding measures in the form of directives which relate to matters within the remit of the European Social Charter, they should – both when preparing the text in question and when transposing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter. It is ultimately for the Committee to assess compliance of a national situation with the Charter.

With regard to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, the concerns underlying the text of this Directive undoubtedly show the authors’ intention to comply with the rights enshrined in the Charter. The practical arrangements agreed between member states of the European Union, if properly applied, do not prevent a concrete and effective exercise of the rights contained in particular in Articles 2§1 and 4§2.

However, the Directive at stake provides for many exceptions and exemptions which may adversely affect respect for the Charter. Thus, depending on how member states of the European Union make use of those exemptions and exceptions or combine them, the situation may be compatible or incompatible with the Charter.

The system of annual working days

The claim concerning the impact of the annual working days system in terms of length of working time and remuneration of overtime work does not come within the scope of Article 1§1 of the Revised Charter (12 votes to 1)

– Violation of Article 2§1 of the Revised Charter on the ground of the excessive length of weekly working time permitted and the absence of adequate guarantees under the annual working days system (unanimous)

Flexible measures regarding working time are not as such in breach of the Revised Charter (see in particular General Introduction, Conclusions XIV-2, p. 33). In order to be found in conformity with the Revised Charter, national laws or regulations must fulfil three criteria:

i. they must prevent unreasonable daily and weekly working time;
ii. they must operate within a legal framework providing adequate guarantees;
iii. they must provide for reasonable reference periods for the calculation of average working time.

i. Length of daily and weekly working time

The system of annual working days does not set any limit to the daily working time of staff concerned. Consequently, the right to a daily rest period of 11 hours provided for by Article L. 3131-1 of the Labour Code applies. Therefore, staff concerned cannot work for more than 13 hours on any day worked over the year, whatever the circumstances. This daily limit is in conformity with Article 2§1 of the Revised Charter.

There is no specific limit to weekly working time either in the annual working days system. Here again it is the minimum rest period provided for in Article L. 3132-2 of the Labour Code which sets a limit to weekly working time. The weekly rest period must be for 35 consecutive hours, i.e. 24 hours of weekly rest provided for by Article L. 3132-2 and 11 hours of daily rest in accordance with Article L. 3131-1. This means that, whatever the circumstances, staff concerned cannot work for more than 78 hours per week. The Committee is nevertheless of the view that this length of working time is manifestly excessive and therefore cannot be considered reasonable within the meaning of Article 2§1 of the Revised Charter.

ii. A legal framework providing adequate guarantees

In order to be in conformity with the Revised Charter, a flexible working time system must operate within a precise legal framework which clearly circumscribes the discretion left to employers and employees to vary, by means of a collective agreement, working time.

In the instant case, the annual working days system can only be adopted on the basis of collective agreements. Such agreements are required by law to lay down the annual working time and the main characteristics of the annual working time system.

However, the law does not require that collective agreements provide for a maximum daily or weekly limit. While they may in practice do so, such agreements are no longer required by law to specify the procedures to monitor the working time of the staff concerned, especially their daily working time and their workload. This is now essentially left to annual individual interviews with the employer (Article L. 3121-46) and an annual consultation of the staff committee (Article L. 2323-29). Therefore, the guarantees afforded by collective bargaining are not sufficient to comply with Article 2§1.

Further, collective agreements may be concluded at enterprise level. The possibility to do so regarding working time is in conformity with Article 2§1 only if specific guarantees are provided for. In this respect, the procedure for contesting collective agreements under Articles L. 2232-12, L. 2232-13 and L. 2232-27 of the Labour Code do not constitute such a guarantee since its use is too hypothetical. Consequently, the situation is not in conformity with Article 2§1.

iii. A reasonable period for the calculation of average working time.

In light of the findings above on the first two criteria, it is not necessary in the present case to pronounce on the third criterion.

– The claim concerning risks related to the organisation of work, in particular the working time within the framework of the annual working days system, does not come within the scope of Article 3 of the Revised Charter (12 votes to 1)

Overtime work

– Violation of Article 4§2 of the Revised Charter on the ground of the remuneration of overtime work as provided for under the annual working days system (unanimous)

The legislation in force does not modify the situation of employees who come under the annual working days system regarding remuneration of overtime work, contrary to Article 4§2 (CFE-CGC v. France, complaint No. 9/2000, decision on the merits of 16 November 2001, §45; CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§57-59).

Article 4§2 does authorise exceptions to the right to an increased rate of remuneration for overtime work. These exceptions may apply to certain categories of public officials or managers, who must be few in number (Conclusions IX-2 p. 38).

The number of employees concerned and the nature of their duties clearly excludes them from the scope of the exceptions referred to in Article 4§2. They are therefore entitled for the right embodied in this article.

The number of hours of work performed by employees who come under the annual working days system and who do not benefit from a higher rate for overtime, under this flexible working time system, is abnormally high. The fact that an increased remuneration is now foreseen for the days worked which correspond to the days of leave which the employee under the annual working days system has relinquished cannot be considered sufficient under paragraph 2 of Article 4. In such circumstances, a reference period of one year is excessive.

– The claim under Article E taken in conjunction with Articles 20 and 27 of the Revised Charter regarding the impact of the working time and overtime work of employees coming under the annual working days systems is not founded (8 votes to 5).

Having regard to the information communicated by the French delegation during the 1104th meeting of the Ministers’ Deputies,

1. Takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights. (see Appendix to the resolution);

2. Looks forward to France reporting, at the time of the submission of the next report concerning the relevant provisions of the revised European Social Charter, on any new developments regarding the implementation of the Revised European Social Charter;

3. Decides not to accede to the request for the reimbursement of costs transmitted by the European Committee of Social Rights.

Appendix to Resolution CM/ResChS(2011)…

Reply by France to the conclusions of the European Committee of Social Rights (ECSR), submitted by the Representative of France at the 1104th meeting of the Ministers' Deputies (2 February 2011)

European Committee of Social Rights
Collective complaints No. 55/2009 Confédération Générale des travailleurs (CGT) and
No. 56/2009 Confédération Française de l’encadrement CFE-CGC

In two reports against France and submitted to the Committee of Ministers, the European Committee of Social Rights (hereafter the Committee) held that French labour law was in breach of Article 2§1 of the European Social Charter (the Charter) on account of the excessive length of authorised weekly working time and the absence of adequate guarantees under the annual working days system.

The Committee also held that the on-call system was in breach of the right to just conditions of work enshrined in Article 2§5 of the Charter.

It further held that the remuneration of overtime work under the annual working days system was not in conformity with Article 4§2 of the Charter.

Firstly, it should be pointed out that, in accordance with the principles laid down by the Charter, it is for each state to determine the legislation that is most compatible with the organisation of work and the structuring of economic and social life.

In this respect, it should be noted that the developments in French labour law primarily have their basis in two complementary approaches: that of taking account of social stakeholders' interests and rights, while involving them to a considerable extent in the process of creating social rules, and that of shaping all social policies to comply with the international commitments entered into by France.

If they are to be effective the functions assigned to the social partners, as the protectors of employee rights, entail that, in "seeking the most appropriate level of public action", a key role should be given to collective bargaining and to individual negotiation. The aim is to establish a framework conducive to the formulation of policies and social rules best suited to the structuring and consolidation of the economic and social fabric, while closely involving the principal stakeholders in this process.

The Act on the reform of social democracy and working time passed in 2008, which was the outcome of several years' discussion and consultation with the bodies representing employees, constituted an opportunity to confer greater standard-setting powers on the social partners.

This Act, which was passed in a difficult economic context, is moreover part of a broader effort to bring French labour legislation into conformity with France's international commitments in the economic and social sphere and with European Union working time standards.

In this connection, the Government takes note of the Committee's considerations on the links between European Union law, the national legislation at issue and the revised European Social Charter.

It nonetheless points out that, since the entry into force of the Treaty of Lisbon, which makes the Charter of Fundamental Rights legally binding, the EU institutions and the member states have launched a review process, inter alia involving the revision of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time. It goes without saying that France, as a European Union member state, will approach this review in a manner consistent with the provisions of the Charter, as clarified by the case-law of the European Committee of Social Rights.

Nonetheless, with regard to the breaches of the Charter found by the Committee, the Government wishes to provide the following explanations:

The annual working days system

It can be seen from the two reports that the European Committee of Social Rights partly questions the validity of the provisions of the Labour Code relating to managers covered by the annual working days system.

The Committee considers that these provisions permit excessive weekly working time and fail to establish any increased rate of remuneration for overtime work. It accordingly holds that the system is in breach of the provisions of Article 2 paragraph 1 and Article 4 paragraph 2 of the Social Charter on the right to just conditions of work and a fair remuneration.

1) The significance of the annual working days system in French law

Since the Act of 19 January 2000 on the negotiated reduction of working time, special attention has been paid in France to the situation of managerial staff.

Clear rules have been established with a view to regulating managers' working time and, above all, enabling them to benefit from the reduced working time reform that concerns all employees.

The legislation consequently introduced the possibility of concluding package agreements, in hours, on a weekly, monthly or annual basis, or in days, on an annual basis.

French law therefore provided that the working time of certain managers could be reckoned in days rather than hours. The idea underlying the annual working days system is that a manager who is really independent in organising his or her work schedule cannot predetermine his or her working hours. This legislation corresponds to the real independence and actual manner of working of certain managers and affords the margin of freedom necessary for them to be able to manage their time so as to fulfil the important duties entrusted to them.

This system seeks to establish an appropriate legal framework in response to the specific situation of employees who, by virtue of their considerable independence in organising their own work, cannot be made subject to the normal hours applicable in the firm concerned.

This margin of freedom is moreover consistent with the strict rules laid down in matters of health protection at work. The law provides that these managers must have a daily rest period of 11 hours and a weekly rest period of 35 consecutive hours. It also entails a de facto limit of six days work per week, given that in principle the number of days worked in any year cannot exceed 218. This ceiling was set taking into account not only the weekly rest period (104 days taking account of two full days rest on Saturdays and Sundays) but also five weeks paid leave (30 days) and additional days of rest (15 days, equivalent to "reduced working time days" (JRTT)).

Managers have therefore benefited in the same way as non-managerial staff from the organisation of working time introduced under the Act of 19 January 2000. Moreover, various surveys show that managerial staff have a globally positive opinion of the agreements on reduction of working time and, when it comes to assessing their results, the satisfaction rate for this category of employees is greater than that for employees as a whole.

In addition, this annual working days system can be introduced only under a collective agreement. French law is very precise and makes it compulsory for an agreement to include the following clauses:

      - the categories of employees that may benefit from these individual package agreements on annual working days, on the understanding that the employees concerned are those who are independent in organising their work schedules (Article L. 3121-43 of the Labour Code);

      - the number of days worked (Article L. 3121-44 of the Labour Code);

      - the principal characteristics of these package agreements (for example, the method of calculating days and half-days worked and the rules governing the taking of days or half-days of rest).

The Act of 20 August 2008 on the reform of social democracy and working time did not undermine the general balance of these package arrangements and reinforced the position of managerial staff by introducing new guarantees incumbent on the employer: the employer must hold an individual interview with each employee working under a package agreement on annual working days, covering the employee's workload, work organisation within the undertaking, the balance between the employee's working and personal and family lives and his or her remuneration (Article L. 3121-46).

Moreover, the Act of 20 August 2008 requires that works councils shall henceforth be consulted each year on the use of annual working days agreements and the arrangements for monitoring the workloads of the staff concerned. The arrangements for monitoring the workload are therefore considered by a body representing the undertaking's employees, which as such is in close contact with the employees.

2) Accordingly, with regard to the Committee's observations concerning the rules applicable to managers under the annual working days system, the Government wishes to stress that there are safeguards concerning managers' working time, including on a weekly basis.

Although it is true that the rules on the maximum daily or weekly limits in practice do not apply to employees covered by the annual working days system, reasonable working hours are guaranteed through the obligation to comply with the compulsory rest periods imposed on a daily and weekly basis (11 hours and 35 hours respectively).

The working time limit of 78 hours which the Committee takes as its sole reference is an absolute maximum that cannot be exceeded but in no way reflects the real weekly working hours of managers coming under the annual working days system.

Accordingly, when it considers that no specific limit is imposed on weekly working time under this system and that the managers concerned may be obliged to work 78 hours per week, since they can work 13 hours per day for six consecutive days, the Committee bases its reasoning on a theoretical calculation that disregards the effective weekly working hours of managers covered by this system.

3) The Government is moreover surprised by the Committee's viewpoint that collective bargaining does not afford adequate guarantees.

The Act of 20 August 2008 provided that the collective agreement should determine an upper limit on working days that cannot be exceeded and which must, in any case, be compatible with paid leave, rest periods and non-working public holidays. In the absence of a collective agreement, this absolute upper limit has been set at 235 days by parliament.

Apart from the fact that this provision favours and encourages collective bargaining in such matters, which it is moreover for the representative organisations to implement under the new powers conferred on them by law, it should be noted that the Act of 20 August 2008 provides for a compulsory annual individual interview with the employee (Article L. 3121-46), during which matters relating to the employee's workload, work organisation within the undertaking, the balance between the employee's working and personal and family lives and his or her remuneration must be discussed.

The collective agreements therefore effectively provide for guarantees, as required by law and as can be seen from the true collective bargaining situation.

Furthermore, many branch or individual enterprise agreements have indeed been signed with a view to regulating the annual working days system. These include, in particular, 114 branch agreements and numerous enterprise-level agreements. It has not been possible to determine the exact number of enterprise-level agreements governing the annual working days system, but, out of a sample of 200 agreements on the organisation of working hours concluded at the enterprise, establishment or economic unit level, 64 concern the annual working days system and 43 of these focus solely on this question. There is accordingly a significant number of enterprise-level agreements on the annual working days system.

Hence, taking into account the laws and regulations, supplemented by the protective provisions of the agreements, the figure of 78 hours work per week is based on a highly theoretical calculation. In practice, according to INSEE (the French statistics institute) managers under the annual working days system report that they work an average of 44 and a half hours per week and less than one-third of them state that they work at least 48 hours per week.4

4) The remuneration of managers coming under the annual working days system is by definition high, so as to take account of their specific situation.

The Committee considers that the number of hours worked by managers coming under the annual working days system and who do not benefit from a higher rate for overtime is abnormally high and that this situation is, consequently, contrary to Article 4 paragraph 2 of the Charter.

Employees who come under this annual working days system by design do not fall within the scope of the legislation on overtime, since their working time is calculated in days rather than hours.

Accordingly, unlike package agreements on working hours, which are based on the principle of including a predetermined number of overtime hours in the salary, a package agreement on working days functions on the principle of determining a salary taking account of the workload, the responsibilities and the constraints imposed on the employee without making reference to a standard working time expressed in hours.

The collective agreements, enterprise-level agreement or employer take these factors into account along with the constraints deriving from this specific type of organisation of working time in order to determine the salary of a manager working under the annual working days system, which is normally in the higher pay categories.

Moreover, an employee under the annual working days system can apply to the courts if he or she deems that his/her remuneration is incommensurate with the constraints imposed on him/her (Article L. 3121-47). Compensation, calculated according to the prejudice incurred, can then be awarded. In calculating this compensation account will be taken of the level of salaries applying within the firm to people with his/her classification.

The Act of 20 August 2008 supplemented these provisions: the law now guarantees at least 10% higher pay for rest days that employees working this system are allowed to waive and that constitute overtime.

These provisions, which apply the principle of a higher rate of pay for all additional time worked, therefore guarantee the fair remuneration principle.

II. On-call service

The Committee notes that during periods of on-call service an employee is obliged to be at the disposal of the employer to perform work, if the employer so requests. This obligation prevents the employee from pursuing activities of his or her own choosing. The Committee consequently holds that the absence of effective work is not a sufficient criterion for regarding such a period as a rest period.

The Government wishes to recall the terms of the French legislation governing on-call service.

Article L. 3121-5 of the Labour Code provides "on-call periods shall be periods in which employees, without being permanently and immediately at their employers' disposal, must remain at home or close by so that they can be called on to carry out work on the firm's behalf, the duration of such work being considered as effective working time. With the exception of periods actually spent working, periods on call shall be reckoned as part of the minimum daily and weekly rest periods.

On-call periods shall be established under extended collective agreements or individual enterprise or establishment-based agreements, which shall determine the manner in which they are organised and the compensation, whether financial or time off work, to which they give rise. (...)"

It can be seen from the law that on-call periods and rest periods are compatible concepts. This is because, outside of periods actually spent working, which are of course re-qualified as working time, employees can go about their personal business, at home or close by.

There can, however, be no denying that on-call periods are not a form of rest like any other. It is for this reason that French law imposes very strict requirements concerning such periods:

    - a collective agreement on the subject must in principle be concluded;

    - strict compliance with the daily and weekly rest periods (11 and 35 hours respectively); If employees are called out during on-call periods, they must be allocated the full rest period when the call-out ends;

    - the obligation to grant the employees concerned financial compensation or additional time off work, as determined by the collective agreement or, failing that, by the employer.

On-call periods therefore cannot be deemed to violate the right to reasonable working time in so far as there can be no denying that, by definition, such periods are for the most part periods of inactivity during which the employee is in no way required to carry out work and/or to be present on the firm's premises.

At all events, on-call periods (at home or close by) and on-duty periods (in the workplace) both raise the same issue: how should one treat and regulate these situations which combine continuing subordination to an employer (the principle of being available), which is characteristic of a work situation, with a considerable amount of time spent inactive, or going about one's own business in the case of on-call periods, which is typical of a rest period?

This has been identified as one of the key issues to be addressed in the revision of the working time directive, with the aim of developing a more flexible, and at the same time more protective, framework governing these specific situations.

This is an area where France – drawing on solutions devised by the social partners – has developed innovative approaches such as the system of equivalences. This system makes it possible not to reckon each hour spent on duty as an hour actually worked, but to take account of periods of inactivity during an on-duty period (for example nine hours on duty corresponds to three hours of effective work). This type of system is to be found, inter alia, in the health care, transport and teaching (boarding school) sectors.

In this respect, France shares the concern of the European Committee of Social Rights that the questions raised by periods constituting a halfway house between rest periods in the strict sense and actual work should be better addressed and will make known its views on this matter during the forthcoming debate on the revision of the working time directive.

1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.

2 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

3 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

4 INSEE Première, July 2009 (No. 1249)


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