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19 May 2017

France: an alternative Labour Code to restore workers’ rights

In March 2017, a group of legal experts known as the Research Group for a Different Labour Code (GR-PACT) published an alternative proposal for a complete revision of the French Labour Code. It aims to make the law leaner and more accessible, but also to adapt it to today’s’ challenges and to preserve and strengthen certain important historical achievements.

With a page count of less than 400, the proposed Labour Code is considerably slimmer than the current 3,800-page doorstop. It flies in the face of the labour law reforms carried out during François Hollande’s presidency, in particular the Law of 8 August 2016 on work, the modernisation of social dialogue and improvements to the security of professional careers (the ‘El Khomri Law’).

The GR-PACT proposal reestablishes the ‘hierarchy of norms’, a principle which states that provisions at a lower legislative level may derogate from provisions at a higher legislative level only if this benefits the employee. This runs counter to the approach championed by Emmanuel Macron, France’s new President-elect, who made it clear throughout his electoral campaign that he intended to decentralise collective bargaining to company level.

Another measure outlined in the proposal which swims against the rising tide of ever-greater labour market flexibility is the transformation of fixed-term contracts into permanent contracts with a clause stating their initial term. These latter impose a general obligation on employers to provide grounds for their termination, even if a fixed term was agreed between the parties to the contract when it was signed, with the aim of thwarting widespread attempts by employers to use fixed-term contracts to impose probationary periods on employees performing permanent roles which form part of the company’s normal and ongoing activities.

With a view to combatting the ever more precarious situation of workers, the group of lawyers has proposed the introduction of two new categories of employees – ‘autonomous employees’ and ‘outsourced employees’ – with a view to ensuring that individuals who work for digital platforms also qualify as salaried workers.

The proposal furthermore states that all employees (including those working in micro-enterprises with fewer than 10 employees) should have easier access to trade union representation through the introduction of inter-company trade union representatives.

The GR-PACT also wishes to allow labour or industrial tribunals to impose heavier sanctions on employers guilty of unfair dismissal, even though the new French Head of State wishes to impose a ceiling on the compensation granted by these tribunals.

The comprehensive work carried out by the labour law experts is the outcome of a large number of consultations with various players in the field, including trade unions.

In recent years, there has been an ongoing debate about the need to reform the French Labour Code. During the Hollande presidency, several amendments to the Code were adopted by Parliament (or were forced through by the Government). The process started in early 2016, when the Government announced the first reform relating to working hour adjustments by companies. Redrafting the 3,800 pages of the Labour Code was predicted to take several years. The two main objectives were to revise the entire Labour Code and to give company-level agreements a central role, resulting in a new three-tier architecture for the Labour Code and a focus on collective bargaining at sector or company level. A committee formulated the fundamental principles that served as the basis for a draft bill presented in January 2016. The initiative was also inspired by the book Le Travail et la Loi [Work and the Law] (Fayard, 2015) by Robert Badinter (former Justice Minister under François Mitterrand) and Antoine Lyon-Caen. Trade unions and employers agreed from the outset that the Labour Code was overly complex, albeit for different reasons. As the draft bill moved into the decision-making legislative stage, the unions organised massive protests.

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