The “Rebsamen” Law Act No. 2015-994 of 17 August 2015
FRANCE – The “Rebsamen” Law Act No. 2015-994 of 17 August 2015, French Official Journal of 18 August reforms the system of staff representation with the aim of improving performance in French companies. The French government has endorsed the reflection of the ILO according to which a “productive social dialogue” is likely to “favour labour-related peace and stability and stimulate the economy”.
- In an in-depth impact assessment, the government describes a deficient social dialogue that: is inexistent in companies with fewer than 11 employees, for which the law does not require the election of Personnel Representative Institutions (“IRP”);
- is based on rigid and complex IRP operating rules;
- is characterised by “a culture of defiance”.
Bolstered by this assessment, Monsieur Rebsamen, Minister of Labour, submitted a reform plan to Parliament to improve labour relations and performance within French companies. The Rebsamen Law on labour relations and employment was adopted by the National Assembly on 23 July 2015. It was passed on 9 July and enacted on 7 August. On the heels of the Macron Law, which aims to provide more flexibility to employers, the French government recently enacted the Rebsamen Law. The Rebsamen Law (hereafter "the Law") aims to simplify relations between unions and employer representatives. It is impossible to summarise in a few lines this ambitious text aimed at elected personnel representatives (IRP) as well as labour unions. France has a complex system of employee representation at the workplace level, with both the unions and structures directly elected by the entire workforce. Where trade unions are present, the key figure will be the trade union delegate.
There are a large number of structures which provide representation for employees in France, both for trade unionists and for the entire workforce. Trade unions present in a company are normally able to set up trade union sections, which bring together their members in the workplace and have specific legal rights. In addition, provided they have sufficient support (see below), unions can appoint trade union delegates in companies with more than 50 employees. These union delegates have a role both within the union and on behalf of all employees.
The representation of the entire workforce on most issues is provided by two separate elected bodies, which have specific legal rights and duties. These are the employee delegates (DP) and the works council (CE), elected either at company level or at plant level. In addition, there is a separate committee that deals with health and safety issues (CHSCT). In larger companies, the employee delegates, the works council and the health and safety committee are usually separate, though the same individuals can be elected to both. However, in companies with between 50 and 300 employees (until recently 200), the employer can decide that the functions of all three bodies should be combined in a single common representative body (DUP). In addition, in companies with over 300 employees, the employer and the unions (provided they represent a majority of the workforce) can agree that the three employee representative bodies can be combined in a way that best suits their needs. However, although the structures can be changed by agreement, the rights and responsibilities of the bodies remain untouched.
Access to representation for all employees: the creation of the “CRPI”
Up to now, companies with fewer than 11 employees did not have Personnel Representative Institutions. The Rebsamen Law introduces Joint Regional Inter-Professional Commissions (“CRPI”), consisting of members elected by employee representative organisations and professional management organisations, which will be created as of 1 July 2017. Their purpose will be to represent employees and management of companies with fewer than 11 employees.
Personnel Representative Institutions
Employee representation is divided among several institutions in France. In companies with more than 50 employees, the latter are represented by:
- the Personnel Delegates (“DPs”),
- the Works Council (“CE”),
- the Committee on Hygiene, Safety and Working Conditions (“CHSCT”).
Companies with fewer than 200 employees may, on their own initiative, decide to combine the Personnel Delegates and the Works Council within one body, the Single Personnel Delegation. A Single Personnel Delegation will, according to the Rebsamen Law, be conceivable in companies with fewer than 300 employees. As they change in size, they will, in time, be required to include the CHSCT.
Under an agreement signed with the labour unions (“majority company agreement”), in companies with more than 300 employees, representative bodies may also be grouped within a common body. This body will perform all of the duties of the institutions included in the group. All company projects falling under the competence of several institutions will be subject to a single process of notification and/or consultation of the common body. This grouping will make it possible to reduce the number of meetings and expert assessments. It should result in increased efficiency and savings in terms of time and money.
Simplification of the process for consulting and informing the Works Council
There were 17 obligations of recurrent annual consultations of the Works Council. Obligations to inform (without collecting the opinion of the Works Council) are reflected in approximately 50 articles of law. These numerous and dispersed obligations are the result of a continual accumulation over time. They do not provide stakeholders of the labour-relations dialogue with a global vision and do not allow a strategic approach of the economic and labour-related policy of the company.
According to the Rebsamen Law, the 17 annual consultations will be replaced by 3 consultations dealing with:
- strategic orientations, the economic and financial situation
- social policy, working and employment conditions.
Certain consultations are to be eliminated: employers will no longer be required to consult the Works Council on projects regarding collective agreements or on the renewal of profit-sharing agreements or employee savings plans. Special extra-ordinary obligations will no longer be presented in a scattered fashion, but will be combined within the Labour Code under the title “Special consultation and notification of the Works Council”.
Simplification of the functioning of the Works Council
The current situation, the functioning and the methods for consulting the Works Council follow restrictive rules that very often lead to purely formal consultations. The Works Council must meet each month or every two months according to the number of employees in the company (at least 150 employees). According to the Rebsamen Law, the threshold above which the frequency of Works Council meetings passes from bimonthly to monthly is raised from 150 to 300 employees. Additionally, this frequency may be adapted by a majority company agreement signed with the labour unions without passing to fewer than six annual meetings. Finally, the employer may use video conferencing to gather the Works Council and may record the sessions.
Protection of employee representatives
The August 2015 legislation on social dialogue and employment has further strengthened the protection of trade union delegates and employee representatives, whose time off for duties associated with these roles amounts to 30% or more of their contractual hours. The law provides that their pay must increase in line with that received by other employees with a similar status and seniority.
Temporary work contract
Article 55 of the Law on Social Dialogue and Employment (No. 2015-994) introduces the possibility to renew temporary agency work assignments twice (as well as fixed-term contracts contrat à durée déterminée, CDD). However, the total duration of the tenure (including renewals) is to remain unchanged. Prior to this change, the French Labour Code only allowed for one single renewal, and an 18-month limit to the total duration of the assignment (renewal included), with some exceptions as detailed below. Any assignment still ongoing on the date of publication of the law, as well as any assignment that started after 19 August 2015 can be renewed twice as long as the total duration of the tenure including renewals stays within the maximum duration.
In France, the use of temporary agency workers (and the same applies to CDDs) is limited to the following situations (Article L1251-6, Labour Code):
- Replacement of absent workers;
- To deal with a temporary surge in activity;
- Seasonal work, or sectors that do not traditionally hire on a permanent basis;
- Replacement of a business owner.
Assignments are usually limited to 18 months (including renewals), but can last up to 24 months under the following circumstances (Labour Code, Article L1251-12):
- The temporary replacement of an employee whose role will no longer exist in the company;
- The end-user is dealing with an order placed by a foreign customer, and the work requires ‘disproportionate means’ such as a much larger workforce, and/or skills that are not present in the company;
- The assignment is based abroad.