Collective agreements in France

In France, the State does not hold the monopoly of the production of the social norms.

Indeed, the preamble to the Constitution of 1946 affirms that any employee “takes part, via its delegates, with the collective determination of the work conditions”, and " recognizes it; right of paid to the collective bargain of the unit of their condition of uses and of work and their social guarantees ".

An increased place has thus been made for a few years with the collective bargain and the social dialog. In other words, with the installation of a dialog between employers and paid aiming to the maintenance of the good performance of the company and the regulation of the social rights (work conditions in particular).

The collective bargain is carried out between trade-union organizations and employers (or employers' associations) according to the type of agreement to which one wants to lead.

Agreements and conventions: distinction and general information

The Loi establishes a distinction between the Collective agreement, which determines the whole of the Work conditions and the social guarantees, and the collective agreement, which relates only to some of these subjects. It also defines the quality of the signatories of conventions and the collective agreements.

The distinction between agreement and convention thus rests on their field of application. This field of application can be geographical (national, regional or local) ou/et professional (interprofessional, connects, undertaken).

The law also determines the legal authenticity of conventions and agreements. Two procedures, the extension and the widening, which suppose both the intervention of the Minister for Labor, make it possible to apply a convention or an agreement beyond its initial field, consisted the companies which signed it, with in an individual capacity or as members of an organization, or who adhered to it.

In France, the right of the collective agreements and collective agreements of work are governed by title III of the book 1st of the Labor regulation (and following). But also, inter alia, by the laws n° 82.957 of November 13rd, 1982 and the law n° 2004-391 of May 4th, 2004 known as law Fillon.

Various types of conventions and agreements

To include/understand the articulation of the various collective texts between them, it is initially advisable to index them:

Total categorization

Some definitions for better including/understanding:

Collective agreement or ordinary collective agreement: those bind only the people or organizations which signed it (E), which is engaged by the organization (trade-union or employers'), or which adheres to it later on.
Collective agreement or wide agreement (E): the extension is a posterior procedure by which one decides to extend the field of application of an agreement or an ordinary collective agreement. It passes by a stopped of the Ministry of Labor.
the catégoriel collective agreement engages only the employees of the professional category concerned (example: the convention known as of the rounds engages only the musicians).
a derogatory agreement is an agreement which derogates from another text, i.e. which makes exception.

The procedures of extension and widening appear in the articles with. They can be carried out only under certain conditions:

Extension

(initiative of the procedure of extension): " The convention of branch or the professional or interprofessional agreement, their endorsements or appendices must, to be able to be wide, to be negotiated and conclude in composite commission from the representatives of the representative trade-union organizations of employers and employees in the field of application considered.

At the request of the one of the organizations referred to above, or his own initiative, the minister in charge for work can call the meeting of a Joint Committee, made up as it known as with the preceding subparagraph, and is chaired by his representative. He must convene this commission when two of the above-mentioned organizations make the demande." of it;

(goal of the extension): " At the request of one of the organizations aimed to the article L. 133-1 or on the initiative of the minister in charge for work, the provisions of a convention of branch or a professional or interprofessional agreement, answering the particular conditions determined by the preceding section, can be made compulsory for all the employees and employers included/understood in the field of application of the aforesaid convention or the known as agreement, by decree of the minister in charge for work, after reasoned opinion of the National Commission of the collective bargain envisaged with.

Seized of the request mentioned with the preceding subparagraph, the minister in charge for work must, obligatorily and without delay, to initiate the procedure of extension".

Widening

This one can take place only in the absence of organizations ready to negotiate returning blow the conclusion of an agreement or an impossible convention.

: " In the event of absence or of deficiency of the organizations of paid or employers resulting in a persistent impossibility to conclude a convention or an agreement in branches of activity or a determined territorial sector, the minister in charge for work can, at the request of one of the interested representative organizations or his own initiative, except written and justified opposition majority of the members of the National Commission of the collective bargain:

To make compulsory in the territorial sector considered a convention or an industrywide agreement already extended to a different territorial sector. The territorial sector being the subject of the decree of widening must present economic conditions similar to those of the sector in which the extension already intervened;
To make compulsory in the professional sector considered a convention or a professional agreement already extended to another professional sector. The professional sector being the subject of the decree of widening must present conditions similar to those of the sector in which the extension already intervened, as for exerted employment;
To make compulsory in one or more branches of activity not included/understood in its field of application a wide interprofessional agreement;
When the widening of a convention or an agreement was enacted in accordance with the preceding subparagraphs, to make compulsory their later endorsements or appendices themselves wide in the sectors aimed by the aforementioned élargissement."

The following article (: " When a convention of branch did not make the object of endorsement or appendix during at least five years, or there that in the absence of convention of the agreements could not have been concluded for at least five years, this situation can be comparable with the case of absence or deficiency of the organizations within the meaning of the preceding article and give place to the application of the procedure envisaged to that the article. "

This situation (a convention of branch remains " immobile" during 5 years) can justify a widening of convention.

Procedures of extension and widening

1st stage: a trade-union organization employers or employees requires the extension or widening. Or the Ministry of Labor decides the widening of convention or the agreement.
the Minister for Labor takes a decree (extension or of widening)
the decree of extension or by widening is preceded by the publication to the Official journal of an opinion relating to the extension or widening considered, inviting the interested organizations and people to make known their observations. ().
the decree is published in the Official journal. The wide provisions do themselves the object of a publication under conditions fixed by lawful way. (even article).

Particular categorization

One can find:

Of the Interprofessional national Agreements (ANI)
Of the Collective agreements of branch (ordinary or wide)
Of the company agreements and agreements of establishment

It is about what one calls of the " niveaux" of negotiation: if convention were negotiated on the level of the branches of activity, one will speak about convention of branch. If the agreement is concluded on the level from the company, one speaks about company agreement. Etc

The articulation of conventions and agreements between them

The levels of negotiation evoked previously are envisaged by the law, with: " The territorial field of application of conventions of branch and the professional and interprofessional agreements can be national, regional or local." The articles and lay down as for them the possibility of concluding from the agreements or conventions on the level of an establishment or a group from establishment.

One speaks in right of hierarchy of conventions and collective agreements. Initially, the law had provided that the convention of higher level prevailed on that of lower level. Here the levels which the law established (let us imagine a pyramid):

At the top of the pyramid is the ANI (Interprofessional National Agreements) because their field of application is broadest (they apply to several professions)
Below, conventions of branch (who generally relate to a branch of industry)
Below, company agreements and agreements of establishment (who apply in general in the company or the establishment concerned (E))

But this hierarchy strongly debatable is today had regard to the legislative evolutions (in particular the law of May 4th, 2004) which we will low detail for more clearness.

Articulation of the conventional texts with the laws and payments

Let us specify that initially, the law provides () that: " convention and the collective agreement can comprise provisions more favorable than the laws and payments in force. They cannot derogate from the provisions of law and order of these laws and réglements".

These conventions (and agreements) collective must thus follow what one calls the principle of favor (i.e., when they have the same object as a law or a payment, being more favorable to the employees than the legislative texts and lawful) and to respect the Law and order, a whole of imperative rules which are essential on all (which includes/understands in particular the basic principles stated in the Constitution).

In the same way, this legislation is currently debatable.

Incidences of the law of May 4th, 2004

The hierarchy of conventions and collective agreements presented previously knew a certain upheaval with the rise of the " dérogatoires" agreements;. They are agreements which derogate (which makes exception to) from conventions or agreements of higher level.

Many doctrinal debates took place in particular about the law of May 4th, 2004 which, if it does not innovate really on the matter (of the former texts had already worked in the same direction), extends the field of the derogatory agreements.

The law of May 4th, 2004

the law of May 4th, 2004 includes/understands a rather important whole of provisions concerning professional training. We will evoke here only the elements affecting the collective agreements. To reach the text as a whole, you with the sources in bottom of the page refer.

This law introduces several elements as regards collective bargain.

The installation of the elected employees

On the one hand, it allows from now on the installation, within the framework of the collective bargains, of an elected employee. Thus, the deprived companies trade-union representatives will be able to take part in the negotiation via an employee of the company to which one empowered to negotiate, for one limited duration.

It is not however an innovation, mandatement results from a legislative and jurisprudential evolution which had already started before the law of 2004.

The Court of appeal, in a stop of 1995 (stop Rams Charre), had already envisaged this possibility while admitting for a representative trade union, in the companies deprived legally of union representative, i.e. less cash than eleven paid, to elect one of them so that it negotiates and signs a collective agreement with the employer. This jurisprudence fell under the line of the position of the Constitutional council which refuses to recognize with the trade unions a constitutional monopoly of representation of the interests of the employees.

This last specified however in its decision of November 6th, 1996 that the trade unions have a “vocation natural to ensure, in particular by the way of the collective bargain, the defense of the rights and interests of the workers”, this natural vocation having constitutional value. The Constitutional council opens the collective bargain with the staff representatives or elected employees “since their intervention has neither as an aim nor for effect to make obstacle with that of the representative trade-union organizations”. It is consequently about a notable exemption from the articles, and.

The interprofessional national agreement of October 31st, 1995 had envisaged the installation of employees elected on an experimental basis during 3 years. It authorized the companies of less than fifty paid deprived of union representative (or of union delegate acting as union representative) to conclude from the agreements with the elected officials of the personnel or an employee elected by a representative trade-union organization, provided this method of negotiation were envisaged and framed by an industrywide agreement.

The mechanism of mandatement was then taken again by the two Aubry laws. The law of June 13rd, 1998 allows the recourse to mandatement in the companies deprived of trade union representation, without it being need that this one was envisaged by an industrywide agreement, but only to negotiate the reduction of the working time. The law of June 19th, 2000 also authorizes the recourse to mandatement and, in second place, the negotiation with the union delegate.

The law of May 4th, 2004 will ratify these various evolutions while modifying which lays out then: " I. - When such a faculty is envisaged by a convention of branch or a wide professional agreement, the companies deprived of union representative can derogate from the articles, and under the conditions fixed hereafter.

“The convention of branch or the wide professional agreement fixes the topics open to this mode of derogatory negotiation. It also determines the conditions of exercise of the mandate of the employees aimed to III. It defines the methods of follow-up of the agreements thus concluded by the equal observatory from branch from the collective bargain mentioned in.

“II. - The conventions of branch or the wide professional agreements mentioned with I can provide that in the absence of union representatives in the company or the establishment, or of union delegate making function of union representative in the companies of less than fifty paid, the elected representatives of the personnel at the work's council, or, failing this, the union delegates, can negotiate and conclude from the collective agreements of work… "

Mandatement of an employee thus remains however a derogatory mode of negotiation (of exception) because, as the texts specify it, it is not possible that in the absence of trade-union representatives in the company. Moreover, the methods of this type of negotiation must be specified by an industrywide agreement or a wide interprofessional national agreement.

Extension of the field of the derogatory agreements

Article 42 of the law of May 4th, 2004 comes to supplement it by two subparagraphs: " As regards minimum wages, the classifications, collective guarantees mentioned with the article L. 912-1 of the code of the social security and mutualisation of the funds collected under book IX of this code, the convention or the company agreement or of establishment cannot comprise clauses derogating from those of conventions of branch or professional or interprofessional agreements.

“In the other matters, the convention or the company agreement or of establishment can comprise provisions derogating in all or partly from those which are applicable for him under the terms of a convention or of an agreement covering a territorial field or broader professional, except if this convention or this agreement has which it differently. ”

Consequently, the company agreements or of establishment cannot derogate from conventions of higher level in the above mentioned fields.

A contrario, they can derogate in all the other fields, this is why one can say that the law of May 4th, 2004 extends considerably their field and their autonomy compared to other conventions and agreements. In addition, always in this direction, the law of May 4th, 2004 opens, in its article 43, of the fields hitherto a41dernier $c-b1, e,10 $c-b26 ce $c-b16 $c-b43, bn,84 reserved for the negotiation of branch (in particular the fixing of the quota of Overtime or the definition of the rate of increase of overtime) to the negotiation of company.

End of the collective agreement

Procedure of denunciation

The denunciation is the procedure by which an employer or trade-union organizations asks for the suppression of the agreement, generally in order to replace it by what one names then an agreement of substitution and not replaced, the wages must be the fruit of a negotiation: it cannot be unilaterally decided by the employer.

Sources

Given Senate and comparative study of the negotiation: (www.senat.fr)

collective agreements (www.prodiss.org)
Law of May 4th, 2004: (www.admi.net/jo)

a document on the law of May 4th, 2004: (www.cgt.fr)

(panjuris.univ-paris1.fr)

Summarized on the site of the ministry: (www.travail.gouv.fr)

Extension and widening: details: (www.cftc-67.fr)

On the incidence of the ANI of September 20th, 2003, transposed in the law of May 4th, 2004 (having modified the article L. 933-2 of the Labor regulation), a study of the DARES

“the law and the law, such are the two forces: from their agreement is born the order, from their antagonism are born the catastrophes. ” Victor Hugo

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