Will There Be a Social Spring in France?

For three decades now all governments, whatever their political colour, see the solution to mass unemployment in flexibilising and precarising labour, and reducing workers’ collective rights and guarantees. The language of the employers has not changed in a century: Wage-earner protections are obstacles to job creation, and better salaries and working conditions weaken the country’s economic power and harm ‘business’. Each successive government, due either to ideology, intellectual laziness, or cynicism, have merely met employers’ demands. Yet unemployment continues to grow, women suffer precarity and non-standard working times more severely than men, which aggravates gender discrimination, and young people, even the most highly educated, endure precarity and struggle with years of short-term contracts before possibly finding any stable employment. The flexibilisation and precarisation reforms have been implemented in one form or another in all European countries.

The Hollande-Valls-Macron project

Nevertheless, a further intensification of the attacks against the world of labour took place under Sarkozy’s five years in office, and the labour movement conducted fierce struggles, but unlike previous periods, for instance with the opposition to the attempted establishment of a special youth contract (the First Job Contract in 1996), this time it was not able to block liberal counter-reforms like those raising the pensionable age and simultaneously reducing pensions. Hollande was elected president by default to drive out Sarkozy but without gaining real support he was rapidly surrounded by the most Ordoliberal of his social democratic friends.
Emmanuel Macron, a corporate banker who made his fortune in bank mergers and acquisitions, was entrusted with the key Ministry of Economy, Industry and Digital Affairs. Prime Minister Valls has never hidden his right-wing views, which earned him less than 5 per cent of votes in the Socialists’ ‘primary’ in the run-up to the 2012 presidential elections.
The disillusionment and anger of young people and progressive forces, who largely voted for Hollande, were intensified when the authoritarian and repressive measures were adapted following the terrorist attacks at the beginning and end of 2015.
The consequences of the government’s attacks on liberty came quickly. Thousands of people were unjustifiably apprehended by a police force now freed from judicial constraint; demonstrations to defend liberty were prohibited or brutally suppressed; streets and public places were full of soldiers as in any dictatorship. Nevertheless, up to now it has not been possible to organise large and visible mobilisations to prevent such moves. In 2015, the so-called ‘Macron’ and ‘Rebsamen’ laws were passed despite some trade union demonstrations that were unfortunately more divided than unified. They weaken employee representation in companies, reduce the number of delegates and the time for the carrying out of their work as elected representatives of personnel, modify the prerogative of personnel representation (Works Council, etc.), authorise night and Sunday work, remove almost all restrictions on dismissals for economic reasons, establish a Corporate Tax Credit for Competitiveness and Job Creation (CICE) as a gift of more than 40 billion euro annually to employers, etc.
All of this is in the name of ‘growth and economic activity’ and the right to work that is to be ‘liberated’.
Clearly, everything that has been predicted is going to happen: the continued rise in unemployment, continued hiring on the basis of short-term contracts (representing 80 per cent of jobs), and the increase of youth precarity.
And even the OECD, hardly suspected of having a progressive bias, is worried that this cannot work, but Hollande, Valls, and Macron have decided to forge ahead and strike even harder by presenting – in the total absence of dialogue with trade union organisations of workers, that is, in violation of the French Constitution – a draft law called ‘work’, which is aimed solely at suppressing the ensemble of collective rights and guarantees contained in the Labour Code.
The Labour Code is the collection of laws voted since it was established in 1910, which is continually enriched by new social conquests made by France’s labour movement. It is first of all the result of struggles to provide strength and instruments to the party that is subordinate to the employers. It is the juridical foundation common to all workers whatever their geographic zone, the size of the enterprise, or the sector in which they work. It is the guarantee of equal treatment for all.
These struggles have brought about what we call the hierarchy of norms, in which sector-wide (or ‘branch’) agreements bring up the level of the common foundation, and company-level agreements ameliorate the latter. A further result of past struggles is the principle that when texts lend themselves to different interpretations the interpretation most favourable to wage earners must always be applied. This is known as the ‘favourability principle’.
Amongst the protections that have existed since the mid-19th century in France, the element which wage earners most favour is the Labour (or Industrial) Tribunal (justice prud’homale) in which labour-related legal decisions are made by a college of non-professional judges, half of which are elected by the world of labour and the other half by the employers and corporate officers. Its decisions are rarely contested, and in 80 per cent of cases the wage earner gets favourable judgements and is awarded damages proportionate to the harm resulting from firing without real or serious cause or due to falsely alleged misconduct.
Working times are legally defined as is the minimum wage. Negotiation is the exclusive prerogative of the unions, and as soon as one of them represents more than 30 per cent of the personnel at the election of the works council, it can sign an agreement that applies to all as long as a union (or unions) that represents more than 50 per cent does not contest its legitimacy before a judge.
The Hollande-Valls-Macron project consists in inverting the hierarchy of norms and proposing that the company contract has primacy over all others. This would put in place rules proper to each enterprise, which instead of protecting wage earners would allow the employer to pit them in competition with their neighbours. Their target is labour law, the protective instrument of the weak against the strong.
Working time could now reach up to 60 hours a week. The obligatory 11 hours of rest between two work shifts, now imposed by an EU directive, could be fragmented, as could the calculation of stand-by time (on-call duty), counted as rest and no longer as working time. 35 hours are no longer the legal duration of work but the ‘normal’ duration! Working time can be regulated on a three-year instead of an annual basis, in order not to have to pay overtime. Moreover, the latter will be augmented, no longer according to a national scale but according to the company contract with the risk of employment blackmail with the aim of paying the least overtime possible. Wages would be negotiated every three years rather than annually. Paid leave for family reasons (death, marriage, birth) would no longer be based on law but on the company-level agreement.
And the icing on the cake – to be able to continue to fire shamelessly but without risk of being condemned for wrongful action – the government is yielding to the century-old demand of employers: muzzle the Industrial Tribunal by legally fixing the scale of compensation to only take account of seniority in the company, removing from the judges’ purview the determination of the complete compensation for the damage suffered. This is unconstitutional because liability has to be proportional to the violation and the reparation is calculated according to the damage suffered, but the government does not care about this.

Extraordinary Mobilisation

In the face of what is truly the most violent attack that the world of labour has had to deal with, all union organisations have expressed their disagreement. Even if they have diverse interpretations this draft law they have all called it unacceptable as is. Some of them (principally the CFDT) think that the bill is amendable by setting requirements like removing the compensation scale when there is recourse to the Industrial Tribunal, or removing the total liberalisation of grounds for dismissal; while others (CGT, FO, FSU, Union Syndicale Solidaire, as well as all union youth organisations) want the bill retracted.
What is new in this period of ideological confrontation is the involvement of youth in contesting the bill. Young people very quickly understood that weakening the rights of labour would condemn them to lifelong precarity, wresting from them the tools of collective bargaining, delivering them into the hands of the owners, leaving them without rights to make themselves heard and respected.
They have shaken up the wages earners’ union organisations, which are more conservative in terms of the range of activism they are willing to consider. They contributed to a 2.0 mobilisation never before used in France, which gathered more than 1.2 million signatures around the hashtag #onvautmieuxqueca. This made it possible to go from a 2.0 mobilisation to a street demonstration on 9 March, which made the government step back and delay the debate on the bill by 15 days to allow time for assembling those concerned. But it appears that this government’s objective is not to hear criticism but to buy time and divide the trade union movement and the unions from the youth.
Moreover, everyone drew the lesson from the failure of the 2010 mobilisations against pension reform under Sarkozy: the inability to generate public acceptance of alternative proposals to those put forward by the government, for which we nevertheless were able to put 3 million people onto the streets. Battling against something is no longer enough; victory also depends on new, offensive, progressive solutions that the world of work is able to insert into the public debate. We need to shift from a defensive posture to an offensive one.

‘The Labour Code That We Need’

In this spirit, several initiatives quickly appeared after the government’s first announcements. The Fondation Copernic, a group of jurists specialised in labour law, as well as trade union organisations themselves, established working groups and produced chapter after chapter of ‘The Labour Code That We Need’.
The aim is to respond to the profound transformations underway, globalization in its current form, the fragmentation of the production chain, the extensive quantification and automatisation of tasks, ecological transition, and the productive transformation that accompanies it. The broad lines underpinning the writing of this alternative labour code are:

• The evolution of the labour code we want has to advance the rights of wage earners.
• Labour law has to take into consideration the issues tied to the transformation of professional activity and the new information and communications technologies.
• The need for a high level of rights and guarantees for the ensemble of workers subject to a subordinate legal relationship or economic dependence (for example, the self-employed).
• The rights of wage earners must no longer depend on their work contract but must reside in their persons and be progressive, cumulative, transferable, and be enforceable against any employer.
• The hierarchy of norms has to be re-established and the favourability principle has to be constitutionalised.
• Collective bargaining has to be re-established that supports social progress, at the branch level and cross-sectorally in the individual firm.
• Collective bargaining must serve to improve the foundation of collective rights guaranteed by the Labour Code.
• Collective bargaining has to be fair and be based on the needs of wage earners.
• In individual sectors, new negotiating rules must be defined: neutral site, equal resources, the discussion of trade union texts, etc.
• At the company level, the reinforcement of trade union rights, the right to set aside time for the transmission of union information, the right to expertise for union organisations with costs borne by the employer, and the establishment of majority agreements.

Finally,

• A legally established maximum work week lowered to 32 hours;
• The consolidation of Employee Representative Bodies;
• More means for defending the rights of wage earners.

An unprecedented campaign has been initiated to fight the employers and the government and to present to the public opinion, first of all in workplaces, the proposals for a modern and protective labour code that supports social progress and the eradication of unemployment and precarity.
The struggle is beginning. Will we see a social springtime in France? Things are looking up, but the future depends on what we make of it.
12 March 2016

Translation: Eric Canepa