Collective Complaint No. 55/2009
by the Confédération générale du travail (CGT) against France
(Adopted by the Committee of Ministers on 6 April 2011
at the 1111th meeting of the Ministers’ Deputies)
The Committee of Ministers,1
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 21 January 2009 by the Confédération générale du travail (CGT) 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
– 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.
– Violation of the right to reasonable working time provided in Article 2§1 of the Revised Charter on the ground of on-call duty (unanimous)
The “périodes d’astreinte” during which the employee has not been required to perform work for the employer, although they do not constitute effective working time, cannot be regarded as a rest period in the meaning of Article 2 of the Charter, except in the framework of certain occupations or particular circumstances and pursuant to appropriate procedures.
The “périodes d’astreinte” are periods during which the employee is obliged to be at the disposal of the employer with a view to carrying out work, if the latter so demands. However, this obligation, even where the possibility of having to carry out work is purely hypothetical, unquestionably prevents the employee from the pursuit of activities of his or her own choosing, planned within the limits of the time available before the beginning of work at a fixed time and not subjected to any lack of certainty resulting from the exercise of an occupation or from the situation of dependency inherent in that exercise.
The absence of effective work, determined a posteriori for a period of time that the employee a priori did not have at his or her disposal, cannot therefore constitute an adequate criterion for regarding such a period as a rest period (CGT v. France, Complaint No. 22/2003, decision on the merits of 7 December 2004, §§ 35-37).
Weekly rest period
– Violation of Article 2§5 of the Revised Charter, given the consequences on weekly rest day of the assimilation of on-call periods to rest periods (unanimous)
On-call periods, wrongly regarded as rest periods, can occur on Sundays (CGT v. France, Complaint No. 22/2003, decision on the merits of 7 December 2004, §39).
– 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.
– No violation of Article 4§2 of the Revised Charter due to the introduction of the unpaid solidarity day (unanimous)
The introduction of a solidarity day results in an unpaid additional day’s work, which implies, for monthly paid workers, additional hours of work paid at a normal rate. This restriction on Article 4§2 is provided by law, pursues the legitimate aim of protection of public health in respect of a vulnerable section of the population, and is proportionate to the legitimate aim pursued.
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.
Appendix to Resolution CM/ResChS(2011)4
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 du travail (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 the annual working days 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.2
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 requalified 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.
In 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 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.
2 INSEE Première, July 2009 (No. 1249).