Changes in French Employment Law
By Joël Grangé
Posted: 23rd May 2016 10:30French employment law has been the subject of many changes under François Hollande’s government. In 2015, the Macron Law and the Rebsamen Law aimed at strengthening France’s economic growth and streamlined dialogue between social partners, respectively. In 2016, a draft law seeking to further reform employment law has been introduced by Labour Minister Myriam El Khomri and is currently subject to heated debates within parliament. These reforms constitute part of the more general trend in recent years to increase flexibility in the French labour market, while also strengthening France’s competitiveness and attracting foreign businesses.
The Macron Law on growth, activity and equal economic opportunities, published on 7 August 2015, implements key reforms concerning collective redundancies, working time and proceedings before the labour courts, which aim to strengthen France’s economic growth.
In carrying out a collective redundancy, the employer must determine which employees will be affected by redundancy through the application of “selection criteria”. These criteria are applied within each professional category concerned, namely between employees who have similar training and similar positions within the company. Previously, these criteria could only be applied at the level of the company as a whole, unless a collective agreement had been reached. As a result of the Macron Law, such an agreement is no longer required in order to apply the selection criteria at sub-company level, which will surely simplify the implementation of redundancy plans. The Macron Law has further simplified the process to be followed by employers seeking redeployment possibilities for affected employees both within and outside of France.
The Macron Law has also broadened the possibility for Sunday and evening work in certain tourist and commercial zones. Retailers in such zones may now open on Sundays without the prior authorisation of the labour law administration, but they must nonetheless obtain employees’ approval of such working time arrangements through a collective agreement and must obtain the individual employee’s consent to work on any given Sunday. Further, employees working on Sundays must be paid at least double the usual rate and must be entitled to compensatory rest. Similarly, the Macron Law allows for retailers in international tourist zones to open until midnight without prior authorisation, on the condition that a collective agreement is first met with employees and that individual employees agree to work evening shifts. Employees working such shifts are to be afforded double pay, compensatory measures to ensure a work-life balance and means of transport to return home. However, to date, few collective agreements have been signed to this effect.
Additionally, the Macron Law has also bolstered the efficacy and calibre of the labour courts. In response to the significant delays prevalent before the labour courts as a result of their heavy caseload, the Macron Law has expanded the role of the preliminary body before the labour courts, the conciliation bureau, in order to reduce delays in hearings before the more comprehensive judgment bureau, the secondary body which steps in where the first fails. Further, the labour court bench is not comprised of professional judges but of employee and employer representatives. Under the Macron Law, these non-professional judges are now required to undertake certain training, both upon joining the bench and throughout their time sitting on the labour court.
The Rebsamen Law on social dialogue, which entered into force on 18 August 2015, seeks to streamline social dialogue and the functioning of staff representative bodies within companies, including by creating regional staff representative bodies for smaller companies, regrouping staff representative bodies in both smaller and larger companies, and restructuring the information and consultation of existing staff representative bodies.
Under the Rebsamen Law, companies with under 11 employees can implement a regional staff representative body, called a joint regional inter-professional commission. This regional commission is made up of 20 members of equal employer and employee representation, and assists in the resolution of employer-employee conflicts while also providing advice on the applicable law and collective bargaining agreement, along with developing social and cultural activities within the companies.
Further, larger companies are similarly afforded the possibility of regrouping staff representative bodies within a unique staff delegation. While such a body already existed under the previous law, the Rebsamen Law has expanded the size of the company entitled to implement such a body from one with a workforce of between 50 to 200 employees to one with between 50 and 300 employees. In addition, it has extended the scope of the unique staff delegation itself to include the Committee for Health, Safety and Working Conditions (CHSCT) in addition to the works council and the staff delegates.
Moreover, the Rebsamen Law has introduced a number of arrangements for the transfer of information between staff representative bodies and company management. It has regulated the consultation of the CHSCT in imposing deadlines within which it must submit its opinion on a given consultation, following on from the time frames implemented for works council consultations in 2013. The Rebsamen Law has also reorganised the structure of mandatory negotiations within the company by simplifying the main themes subject to the information and consultation of the works council.
Draft El Khomri Law
A further law reforming French employment law, introduced by Labour Minister Myriam El Khomri, is currently tabled before parliament. The law, which follows on from the Secure Employment Law of 2013 and the Macron Law of 2015, has been subject to extensive debate both within society and now before the lower house.
Before its introduction to parliament, the bill was subject to numerous demonstrations within the community. The extent of these protests was such that certain draft provisions were retracted. Notably, the proposal to introduce a binding scale for determining indemnities awarded by the labour courts where they deem a dismissal to be unfair has been abandoned, leaving only guidelines in their stead.
Upon its introduction to parliament, the debates have only further intensified. The extent of controversy surrounding the draft law is such that the Government enlivened article 49.3 of the French Constitution, bypassing the requirement for the bill to be passed by vote through the introduction of a no-confidence motion. On 12 May 2016, after the no-confidence motion proved unsuccessful, the 224-page draft law was passed with over 460 modifications.
One of the key proposals which was removed before the lower house concerned the purview of the business sector to be taken into account in examining the economic grounds for dismissal: initially under the draft law, employers were only required to consider the company’s situation within France; now these grounds will continue to be analysed on a global level for multinational companies. Nonetheless, a number of provisions have remained intact. For instance, under the draft law as it currently stands, company agreements may override branch agreements, even where they are less favourable.
Having resisted continued demonstrations and examination by lower house, if only partially and through mechanisms circumventing the usual voting procedures, the draft El Khomri law is due to be considered by the opposition-led Senate as of 1 June 2016. It will then be subjected to final discussions before the Joint Commission of National Assembly and Senate members, before potential review by the Constitutional Council. Meanwhile, the protests continue. In light of the political climate, on the one hand, and the similar labour reforms that have been passed in recent years, on the other, it remains to be seen just how much of the current draft text can withstand the scrutiny of all stakeholders.
Joël Grangé Widely respected for his extensive knowledge and considerable experience in French labour law, he advises French and International clients. He has developed a strong practice in mergers and restructuring operations, notably through the handling of collective redundancies and transfers of undertakings.
Joël represents his clients in collective disputes before labour courts and also assists them in the preparation and negotiation of collective agreements. He helps clients in their relations with executive management. His Professional Memberships: L&E Global; EELA; IBA; AVOSIAL. Career: Head of Gide Loyrette Nouel Law department (1999-2008). Partner of Flichy Grangé Avocats since 2008
Joël can be contacted on +33 (0)1 56 62 30 27 or by email at firstname.lastname@example.org