European Committee of Social Rights
Comité européen des Droits sociaux
Confidential[1]
Confédération française de l’Encadrement CFE-CGC
v. France
Complaint No. 56/2009
REPORT TO THE COMMITTEE OF MINISTERS
Strasbourg, 13 September 2010
Introduction
1. Pursuant to Article 8§2 of the Protocol providing for a system of collective complaints (“the Protocol”), the European Committee of Social Rights, a committee of independent experts of the European Social Charter (“the Committee”) transmits to the Committee of Ministers its report[2] on Complaint No. 56/2009. The report contains the Committee’s decision on the merits of the complaint (adopted on 23 June 2010). The decision on admissibility (adopted on 29 June 2009) is appended.
2. The Protocol came into force on 1 July 1998. It has been ratified by Belgium, Croatia, Cyprus, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal and Sweden. Furthermore, Bulgaria and Slovenia are also bound by this procedure pursuant to Article D of the Revised Social Charter of 1996.
3. The Committee’s procedure was based on the provisions of the Rules of 29 March 2004 which it adopted at its 201st session and revised on 12 May 2005 at its 207th session and on 20 February 2009 at its 234th session.
4. It is recalled that pursuant to Article 8§2 of the Protocol, this report will not be made public until after the Committee of Ministers has adopted a resolution, or no later than four months after it has been transmitted to the Committee of Ministers, namely 14 January 2011.
European Committee of Social Rights
Comité européen des Droits sociaux
DECISION ON THE MERITS
23 June 2010
Confédération française de l’Encadrement CFE-CGC
v. France
Complaint No. 56/2009
The European Committee of Social Rights, committee of independent experts established under Article 25 of the European Social Charter (“the Committee”), during its 244th session attended by:
Mrs Polonca Končar, President
Mssrs Andrzej Swiatkowski, Vice-President
Colm O’CINNEIDE, Vice-President
Jean-Michel Belorgey, General Rapporteur
Mrs Csilla KOLLONAY LEHOCZKY
Mrs Monika SCHLACHTER
Birgitta NYSTRÖM
Lyudmilla HARUTYUNYAN
Mssrs Rüçhan IŞIK
Petros STANGOS
Alexandru ATHANASIU
Luis JIMENA QUESADA
Mrs Jarna PETMAN
Assisted by Mr Régis BRILLAT, Executive Secretary
After having deliberated on 16 March, 22 and 23 June 2010
On the basis of the report presented by Mr Alexandru ATHANASIU
Delivers the following decision adopted on the latter date:
PROCEDURE
1. The complaint submitted by the Confédération française de l’Encadrement CFE-CGC (“the CFE-CGC”) was registered on 4 May 2009. It alleges that the provisions of Act No. 2008-789 of 20 August 2008, on the reform of social democracy and working time, fail to comply with Articles 1§1, 2§1, 3, 4§2, as well as Article E combined with Articles 20 (c) and 27§1 of the Revised European Social Charter (“the Revised Charter”).
2. The European Committee of Social Rights (“the Committee”) declared the complaint admissible on 29 June 2009.
3. Pursuant to Article 7§§1 and 2 of the protocol providing for a collective complaints system (“the Protocol”) and the Committee decision on the admissibility of the complaint, the Executive Secretariat sent the text of the decision on 3 July 2009 to the French Government (“the Government”), the CFE-CGC, the States Parties to the protocol, the states that have ratified the Revised Charter and made a declaration under Article D§2 and to the organisations referred to in Article 27§2 of the Charter.
4. In accordance with Rule 31§1 of the Committee’s Rules of Procedure, the Committee set 25 September 2009 as the deadline for the Government to make its submissions on the merits. The submissions were registered on 25 September 2009.
5. The Government of Finland, as State Party to the Protocol, submitted observations which were registered on 25 September 2009.
6. In accordance with Rule 31§2 of the Committee’s Rules of Procedure, the President set 20 November 2009 as the deadline for the CFE-CGC to present its response to the Government’s submissions. No response was submitted.
SUBMISSIONS OF THE PARTIES
A – The complainant trade union
7. The CFE-CGC, referring in particular to Act No. 2008-789 of 20 August 2008 on the reform of social democracy and working time (Official Gazette of the French Republic of 21 August 2008), claims that:
- the annual working time scheme, in particular the annual working days system, infringes the right to work provided by Article 1§1 of the Revised Charter in that it induces an increase in employees’ workload which has a detrimental effect on job creation;
- the annual working time scheme, in particular the annual working days system, infringes the right to reasonable working hours provided by Article 2§1 of the Revised Charter;
- the annual working time scheme, in particular the annual working days system, infringes the right to safe and healthy working conditions provided by Article 3 of the Revised Charter by reason of its adverse consequences on employees’ health;
- the annual working time scheme, in particular the annual working days system, infringes the right to a fair remuneration provided by Article 4§2 of the Revised Charter;
- the annual working time scheme, in particular the annual working days system, infringes the right to equal treatment in matters of employment and occupation without discrimination on the grounds of sex provided by Article 20, the right of workers with family responsibilities to equal treatment provided by Article 27 and the right not to be discriminated against in the enjoyment of the rights protected by the Revised Charter provided by Article E, in that the annual working days system applies only to certain employees and violates their rights to reasonable working hours and to a fair remuneration.
B – The Government
8. The Government concludes that the complaints, which derive from a misunderstanding of the articles of the Revised Charter referred to by the complainant, are unfounded and asks the Committee to reject the complaint.
RELEVANT DOMESTIC LAW AND EUROPEAN UNION LAW
A – Domestic law
9. Act No. 2000-37 of 19 January 2000 on the negotiated reduction of working time (known as the Aubry II Act) provides for the reduction of statutory working time to 35 hours per week. It was amended in particular by Act No. 2003-47 of 17 January 2003 (known as the Fillon II Act) and Act No. 2008-789 of 20 August 2008 on the reform of social democracy and working time.
1. State of domestic law with the entry into force of the Fillon II Act
10. Section V (provisions relating to managers), of Chapter II (working hours) of Part I (working conditions) of Book II (regulation of work) laid down a number of specific arrangements governing reduced working hours for managers. The latter were divided into three distinct categories:
(a) Senior Managers (former Article L. 212-15-1 of the Labour Code)
11. These managers were excluded from the scope of the legislation on the length of working time:
“The term “senior managers” shall be understood as meaning managers whose responsibilities are such that they are allowed a significant level of autonomy in organising their work schedule, who have a broad degree of independence in taking decisions and who are among the most highly paid in their firm or establishment.”
(b) Integrated Managers (former Article L. 212-15-2 of the Labour Code)
12. These were managers who were subject to the ordinary regime, i.e. the same rules pertaining to hours and working time as the non-managerial employees with whom they work:
"Article L. 212-15-2. Employees classified as managers in accordance with branch collective agreements or the first sub-paragraph of Article 4 of the national collective agreement of 14 March 1947 on retirement and social welfare, whose duties are such as to require them to work the normal hours applicable to their particular shop floor, department or team, are subject to the provisions on working hours, rest periods and holidays in Chapters II and III and Part II of Book II."
(c) Intermediary Managers (former Article L. 212-15-3 of the Labour Code)
13. These were managers who were not part of either of the two previous categories. To allow them to benefit from an effective reduction in working time, the Code allowed for the conclusion of collective agreements that determined the duration of working time (former Article L. 211-15-3-I).
14. The system applicable to this third category of managers was either the annual working days system (former Article L. 212-15-3) or the annual working hours system (former Article L. 212-15-4). The annual working days system was the subject of several previous complaints (Confédération française de l’Encadrement CFE-CGC v. France, complaint No. 9/2000, decision on the merits of 16 November 2001; Confédération française de l’Encadrement CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004; Confédération générale du Travail (CGT) v. France, complaint No. 22/2003, decision on the merits of 7 December 2004). The Code stated that the number of working days could not exceed 217.
15. Former Article L. 212-15-3 and former Article L. 212-15-4 of the Labour Code read as follows:
“Article L. 212-15-3 – I. Employees classified as managers within the meaning of the sectoral collective agreements or the first paragraph of Article 4 of the national managerial staff retirement and welfare agreement of 14 March 1947 and who are not governed by the provisions of Articles L. 212-15-1 and L. 212-15-2 must benefit from an actual reduction in their overall working hours. Their working hours may be laid down by individual “package” agreements and calculated on a weekly, monthly or annual basis. The conclusion of such package agreements must be provided for in an extended collective agreement or a staff or company agreement setting out the managerial categories eligible to benefit from such individual package agreements and the arrangements for and main characteristics of the package agreements that may be concluded. In the absence of any extended collective agreement or staff or company agreement, such package agreements on working hours may be concluded only on a weekly or monthly basis.
II. Where the agreement provides for the possibility of concluding a package agreement on working hours calculated on a yearly basis, the collective agreement must stipulate the annual total of working time on which the package is based, without prejudice to the provisions of Articles L. 212-1-1 and L. 611-9 relating to the documents for calculating the number of hours worked by each employee. The agreement, provided that it complies with the provisions of Articles L. 220-1, L. 221-2 and L. 221-4, may stipulate daily and weekly limits in place of those laid down in the second paragraph of L. 212-1 and L. 212-7, provided that arrangements are put in place to verify the application of these new agreed maxima and that rules are laid down for monitoring the organisation of work and the workload of the employees concerned, and provided that no objection to such an agreement has been raised in pursuance of Article L. 132-26.
The agreement may also stipulate that package agreements on working hours calculated on a yearly basis shall apply to itinerant non-executive staff whose working hours cannot be determined in advance and who have an effective degree of independence in organising their work schedule in order to perform the duties entrusted to them.
III. A collective agreement or arrangement providing for the conclusion of agreements on annual working days must not have been objected to under the terms of Article L 132-26. The agreement or arrangement shall fix the number of days worked, which may not exceed the maximum of two hundred and seventeen days. The agreement or arrangement shall specify the categories of employees concerned, having regard to their degree of autonomy in organising their work schedule. The agreement or arrangement shall further specify the method of calculating days and half-days worked or taken as rest. It shall determine the conditions governing the supervision of its application and shall lay down procedures to monitor, for the employees concerned, the organisation of their work, variation in the length of the working day, and the resultant workload. The agreement may further provide for days of rest to be entered in a leave-banking account as prescribed by Article L. 227-1.
Employees concerned are not subject to the provisions of Article L. 212-1 and Article L 212-7, second indent. The provisions of Articles L. 220-1, L. 221-2 and L. 221-4 shall apply to them. The agreement or arrangement shall determine the specific procedures for applying the foregoing provisions.
The employer shall retain for consultation by the labour inspector, for a period of three years, any document or documents held by the undertaking or establishment recording the number of days worked by those employees coming under agreements on annual working days. Where the number of days worked exceeds the yearly maximum stipulated by such agreements or arrangements, after subtracting as appropriate the number of days entered in a leave-banking account and the days of paid leave carried forward as prescribed by Article L. 223-9, the employee shall be credited, during the first three months of the following year, with a number of days equivalent to the excess thus calculated. The maximum number of working days for the year in which these days are taken as rest shall be reduced accordingly."
“Article L. 212-15-4. Where a package agreement on working hours has been concluded with an employee governed by the provisions of Article L. 212-15-2 or L. 212-15-3, the corresponding remuneration must be at least equal to that which the employee would receive having regard to the minimum agreed wage level applicable in the company and any bonuses or supplements provided for under Article L. 212-5.
An employee having entered into an agreement on annual working days under the provisions of paragraph 3 of Article L. 212-15-3 who does not benefit from an effective reduction in working time or receives remuneration which is manifestly incommensurate with the constraints imposed may, notwithstanding any stipulation to the contrary, ap
ply to the court for the award of compensation calculated according to the prejudice incurred, having regard in particular to the minimum agreed wage level applicable, or otherwise to the level of the salary which applies in the firm, and corresponding to his/her classification.”
16. Former Articles L. 220-1, L. 221-2 and L. 221-4 of the Labour Code read as follows:
“Article L. 220-1 – All employees shall have a daily rest period of at least eleven consecutive hours.
An extended collective agreement may depart from the provisions of the above paragraph, in accordance with conditions laid down by decree, for example for activities requiring a continuous service or where total working time is split into separate periods.
The decree shall also specify the conditions under which the provisions of the first paragraph may be departed from where there is no extended collective agreement and in the event of urgent work occasioned by an accident or risk of accident or exceptional pressure of work.”
“Article L. 221-2 – No employee shall be required to work for more than six days in any one week.”
“Article L. 221-4 – The weekly rest period must be of at least 24 consecutive hours in addition to the daily consecutive rest period provided for under Article L. 220-1.
Young workers under 18 years of age and young people under the age of 18 on work familiarisation or work experience placements as part of a sandwich course or the school curriculum shall have two consecutive rest days.
Where justified by the particular nature of the activity, an extended collective agreement may lay down the conditions under which the provisions of the preceding paragraph may be departed from in respect of young people over the school-leaving age, provided that they are allowed a minimum rest period of 36 consecutive hours. Where no such agreement exists, a decree from the Conseil d’Etat shall lay down the conditions under which this dispensation can be granted by the labour inspectorate.”
17. Former Article L. 132-26 of the Labour Code read as follows:
“Within a deadline of eight days from the signature of a collective agreement or an enterprise or works agreement, or a supplementary agreement or an appendix, containing clauses that derogate either from statutory or regulatory provisions, where permitted by such provisions, or, in accordance with Article L. 132-24, from provisions on remuneration agreed at professional or inter-professional level, the organisation(s) not having signed one of these texts in question may object to its entry into force, subject to their having obtained the votes of more than half of the voters registered for the previous elections for the works council, or, in its absence, staff representatives. Where the text at issue only concerns one distinct professional category, coming within an electoral college as defined in Article L. 433-2, the organisations that may object to its entry into force are those having received the votes of more than half of the voters registered with the college.
An objection must be in writing and give reasons. It must be notified to the signatories. Texts that have been objected to are considered non-existent.”
18. Section 16 of the Fillon II Act read:
“Under this Act, extended branch collective agreements or individual enterprise or establishment-based agreements reached in application of the Guidelines and Incentives for a Reduction in Working Hours Act of 13 June 1998 and the Negotiated Reduction of Working Time Act of 19 January 2000 are deemed to have been properly executed.”
2. State of domestic law after the entry into force of the Act of 20 August 2008 on reforming social democracy and working time
19. The Act of 20 August 2008 on reforming social democracy and working time does not remove the annual working days system which has been the subject of several past complaints (Confédération française de l’Encadrement CFE-CGC v. France, complaint No. 9/2000, decision on the merits of 16 November 2001; Confédération française de l’Encadrement CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004; Confédération générale du Travail (CGT) v. France, complaint No. 22/2003, decision on the merits of 7 December 2004). In line with certain changes made to the system since the Fillon II Act, the Act of 20 August 2008 aims at adjusting the system’s implementation. Changes made since the Fillon II Act have been reflected in the Labour Code. Further to the renumbering of the provisions of the Labour Code, in force as of 1 May 2008, the relevant provisions have changed numbers.
20. One of the main changes since the Fillon II Act, which has been retained by the Act of 20 August 2008, lies in the fact that the distinction once made between different categories of managers (senior, integrated and intermediary), which defined those managers to whom the annual working days system could apply, has been altered by Act No. 2005-882 of 2 August 2005.
21. The Labour Code provides in Article L. 3111-2 that senior managers, as defined in former Article L. 212-15-1, are excluded from the application of Titles II (length of working time, organising and accommodating working hours) and III (periods of rest and bank holidays), Book I, Third Part of the Code. Their situation thus remains unchanged.
22. By contrast, the other two categories (integrated and intermediary managers) have been removed. Only the criteria foreseen in Article L. 3121-43 are now taken into account to decide whether a convention on annual working days may be concluded, not only with managers but also other categories of employees. Article L. 3121-43 reads as follows:
“Subject to the maximum days of work per year indicated in the collective agreement, as laid down in Article L. 3121-39, being respected, individual package agreements on annual working days may be concluded by:
1° managers who are allowed a level of autonomy in organising their work schedule and whose duties as such do not require them to work the normal hours applicable to their particular shop floor, department or team;
2° employees whose length of working hours cannot be determined in advance and who have an effective level of autonomy in organising their work schedule in order to perform the duties entrusted to them”.
23. According to Article L. 3121-44 the number of days worked cannot in principle exceed 218 days per year, i.e. one day more than in the Fillon II Act. On the other hand, Act No. 2008-789 provides that individual agreements may derogate from this limit provided that an increase in remuneration is granted. When no limit on days worked is fixed in the collective agreement, the annual number of working days cannot go beyond 235 days. Article L. 3121-45 of the Labour Code provides:
“Article L. 3121-45 – Any employee may decide, in agreement with his or her employer, to relinquish days of rest in exchange of an increase in salary. The agreement between the employee and the employer is made in writing. The number of days worked over the year cannot exceed a maximum number laid down in an agreement as foreseen under Article L. 3121-39. Failing such an agreement, the maximum number shall be 235 days.
The maximum number of days worked per year shall be in accordance with the provisions of Title III concerning daily rest, weekly rest and bank holidays observed by the rest of the enterprise, and of Title IV concerning paid leave.
A supplementary agreement to the package convention concluded between the employee and the employer shall lay down the increase rate applicable to the remuneration corresponding to the additional time worked. This rate shall not be below 10%.”
24. The conditions governing package conventions on annual working days, which differ from those foreseen under the Fillon II Act, are also dealt with in the following Articles:
“Article L. 3121-39 - The conclusion of individual package conventions, in hours or days, on a yearly basis shall be provided for by an agreement at enterprise level or, if not, by an industry-wide convention or agreement. This prior collective agreement shall determine the categories of employees entitled to conclude an individual package convention, as well as the annual length of work on the basis of which the package convention is based, and defines the main characteristics of such conventions.”
“Article L. 3121-40 – The conclusion of an individual package convention shall require the employee’s agreement. The convention shall be made in writing.”
“Article L. 3121-46 – An individual interview shall be organised on a yearly basis by the employer with each employee having concluded a package convention of annual working days. This interview shall deal with the employee’s work burden, the organisation of work within the enterprise, the balance between professional life and private and family life, as well as the employee’s remuneration.”
“Article L. 3121-47 – When employees who have concluded a package convention on working days receive a remuneration which manifestly does not take account of the constraints imposed on them, they may, in spite of any conventional or contractual clause preventing it, lodge a complaint with a court with a view to obtaining compensation proportionate to the damage suffered, taking notably into account the level of wages in the enterprise, and corresponding to their qualifications.”
“Article L. 3121-48 – The following provisions shall not apply to employees having concluded package conventions on working days:
1° Article L. 3121-10 on the legal length of working hours per week;
2° Article L. 3121-34 on the maximum length of working hours per day;
3° Article L. 3121-35, first paragraph, and Article L. 3121-36, first and second paragraphs, on the maximum length of working hours per week.”
“Article L. 3121-49 – When the number of days worked exceeds the yearly maximum stipulated by convention or arrangement, the employee shall be credited, during the first three months of the following year, with a number of days equivalent to the excess calculated after subtracting:
1° the number of days entered in a leave-banking account or which the employee has relinquished in accordance with Article L. 3121-46;
2° the days of paid leave carried forward as prescribed by Article L. 3141-21.
The maximum number of working days for the year in which these are taken as rest shall be reduced accordingly.”
“Article L. 3121-51 – A collective labour convention or agreement, a convention or agreement at enterprise level, concluded for managers in accordance with Article L. 3121-40 may specify that package conventions on annual working days are applicable to itinerant non-executive staff whose working hours cannot be determined in advance and who have an effective level of autonomy in organising their work schedule in order to perform the duties entrusted to them. In such cases, the convention or agreement shall include all details provided for under Article L. 3121-40, paragraph 2, and Article L. 3121-42.
Such conventions or agreements may also specify that conventions on annual working days can apply to employees other than managers whose working hours cannot be determined in advance and who have an effective level of autonomy in organising their work schedule in order to perform the duties entrusted to them, provided that they have individually agreed in writing. In such cases, the convention or agreement shall include the details provided for in Article L. 3121-45.”
“Article L. 3171-3 – The employer shall retain for consultation by the labour inspector any documents which allow to calculate the total of working hours of each employee.
The nature of such documents and the period over they should be made available shall be determined by regulation.”
25. Former Article L. 220-1 on daily rest was amended by Act No. 2008-789, the minimum period of rest remained however unchanged, and divided into two separate articles, Articles L. 3131-1 and L. 3131-2.
26. As regards weekly rest, the content of former Article L. 221-2 has been kept in Article L. 3132-1, and that of former Article L. 221-4 in both Articles L. 3132-2 and L. 3164-2.
27. Former Article L. 132-6 on conditions of objection to an enterprise or works agreement has been replaced by the following Articles:
- In enterprises where there are trade union representatives:
“Article L. 2232-12 – The validity of an enterprise or works agreement is subject to the signature of one or more representative employees’ trade unions having obtained at least 30% of the votes cast at the first round of the last elections of staff committee representatives or the staff delegation or, in their absence, employees’ representatives, irrespective of the number of voters, and to the absence of any objection from one or more representative trade unions having obtained the majority of votes cast at the same elections, irrespective of the number of voters.
Objection is expressed within eight days from the date of notification of the agreement, in accordance with the procedure foreseen under Article L. 2231-8.”
“Article L. 2232-13 – The representativeness of trade unions defending by statute the interests of a specific category of employees, which are affiliated to a confederation of trade unions representing this category of employees, allows them to negotiate all provisions applicable to this category.
When the convention or agreement only concerns a specific occupational category with its own electoral college, validity will be subject to the signature of one or more employees’ trade unions having obtained at least 30% of the votes cast by voters registered in this electoral college at the first round of the last elections of the staff committee representatives or the staff delegation or, in their absence, staff representatives, irrespective of the number of voters, and to the absence of objection by one or more representative employees’ trade unions having obtained the majority of votes cast by voters registered in the electoral college at the same elections, irrespective of the number of voters”.
- In enterprises where there are no staff representatives, it is foreseen that one or more employees can be designated by representative trade unions at the national level, each trade union being entitled to designate one employee (Article L. 2232-25). As regards approval of the agreement, Article L. 2232-27 states:
“An agreement signed by a designated employee must be approved by a majority of employees by vote, according to rules specified by decree and in compliance with general principles of electoral law.
Without such approval, the agreement shall be considered null and void”.
B – European Union law
28. The main reference in European Union Law remains to date Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (Official Journal of the European Union L299-9, 18 November 2003).
THE LAW
INTRODUCTORY OBSERVATION ON THE RELATIONSHIP BETWEEN EUROPEAN UNION LAW AND THE EUROPEAN SOCIAL CHARTER
29. The Government of Finland submitted observations in which it draws the attention of the Committee to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time. In respect of another complaint examined in parallel by the Committee and which also deals with the annual working time system (CGT v. France, complaint No. 55/2009), the French Government considers that the national situation is in compliance with the aforementioned Directive and, as a result, that it is in conformity with the Charter.
30. In reply to this argument, the Committee reiterates that the fact that the provisions at stake are based on a European Union directive does not remove them from the ambit of the Charter (CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §30; see also, mutatis mutandis, Cantoni v. France, judgment of the European Court of Human Rights of 15 November 1996, §30).
31. In this regard, the Committee has already stated that it is neither competent to assess the conformity of national situations with a directive of the European Union nor to assess compliance of a directive with the European Social Charter. However, when member states of the European Union agree on binding measures in the form of directives which relate to matters within the remit of the European Social Charter, they should – both when preparing the text in question and when transposing it into national law – take full account of the commitments they have taken upon ratifying the European Social Charter. It is ultimately for the Committee to assess compliance of a national situation with the Charter, including when a European Union directive has been transposed into domestic law.
32. The Committee notes that the European Court of Human Rights has already found that in certain circumstances there may be a presumption of conformity of European Union Law with the European Convention on Human Rights (“the Convention”) by reason of a certain number of indicators resulting from the place given in European Union law to civil and political rights guaranteed by the Convention.
33. The Committee considers that neither the situation of social rights in the European Union legal order nor the process of elaboration of secondary legislation would justify a similar presumption – even rebuttable – of conformity of legal texts of the European Union with the European Social Charter.
34. Furthermore, the lack of political will of the European Union and its member states to consider at this stage acceding to the European Social Charter at the same time as to the European Convention on Human Rights reinforces the Committee’s assessment.
35. The Committee will carefully follow developments resulting from the gradual implementation of the reform of the functioning of the European Union following the entry into force of the Treaty of Lisbon, including the Charter of fundamental rights. It will review its assessment on a possible presumption of conformity as soon as it considers that factors which the Court has identified when pronouncing on such a presumption in respect of the Convention and which are currently missing insofar as the European Social Charter is concerned have materialised.
36. In the meantime, whenever it has to assess situations where states take into account or are bound by legal texts of the European Union, the Committee will examine on a case-by-case basis whether respect for the rights guaranteed by the Charter is ensured in domestic law.
37. In the instant case, the Committee must first indicate how it will assess conformity with the European Social Charter of the situation in states bound by Directive 2003/88/EC of the European Parliament and the Council of 4 November 2003 concerning certain aspects of the organisation of working time.
38. The Committee notes from the outset that, whilst the European Social Charter has been ratified by all member states of the European Union and the Treaty on the European Union explicitly refers to it on several occasions, the preamble of this Directive does not make any reference to it.
39. Notwithstanding this oversight, the Committee considers that the concerns underlying the text of this Directive undoubtedly show the authors’ intention to comply with the rights enshrined in the Charter. It believes that the practical arrangements agreed between member states of the European Union, if properly applied, do not prevent a concrete and effective exercise of the rights contained in particular in Articles 2§1 and 4§2 of the Revised Charter.
40. However, the Committee notes that the Directive at stake provides for many exceptions and exemptions which may adversely affect respect for the Charter by States in practice. It thus considers that depending on how Member States of the European Union make use of those exemptions and exceptions or combine them, the situation may be compatible or incompatible with the Charter.
I. ALLEGED VIOLATION OF ARTICLE 1§1 OF THE REVISED CHARTER
Article 1 – The right to work
Part I: Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
Part II: With a view to ensuring the effective exercise of the right to work, the Parties undertake:
1 to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment;
(…)
A – Arguments of the parties
1. The complainant trade union
41. The complainant trade union states that the fulfilment of the objective of full employment must be assessed in the light of the impact on employment of the measures taken to reach this goal. It alleges in this respect that increasing the workload of employees has a negative effect on employment. It criticises the notion, which is allegedly embraced by the government, according to which an increase in employees’ work time results in increased wages and in turn a higher purchasing power, higher consumption and finally overall economic growth. It illustrates its allegation by the fact that within the framework of the annual working days system overtime work of those employees concerned are not remunerated. Finally it provides certain statistics which show a surge in unemployment during the period which followed directly the introduction of the Act of 20 August 2008. It thus concludes that an increase in the number of hours worked by employees is an obstacle to the hiring of new staff and therefore the attainment of the objective of full employment.
2. The respondent Government
42. The Government first underlines that the annual working days system has been devised in order to adapt regulations on the length and organisation of working time for certain employees and that such a system is not in contradiction with job creation for these categories of employees. Therefore it asks that the complaint brought by the CFE-CGC be rejected as ill-founded.
B – Assessment of the Committee
43. The Committee considers that the core of the complaint raised by the complainant union under Article 1§1 relates to the annual working days system and in particular its impact both on working time of the categories of workers concerned and the remuneration of overtime work performed by these workers.
44. Article 1§1 deals with the employment policy pursued by states in order to achieve full employment as reflected by evidence of legal or declaratory commitment to full employment as well as by figures demonstrating actual state effort, such as the scope of the employment measures implemented (e.g. number of participants as a proportion of all unemployed, average duration of unemployment spent before being offered participation in a measure), the amount of resources devoted to the various measures (e.g. total expenditure as a share of GDP, balance between active and passive measures). The Committee takes into consideration the output side of employment policy, notably the effects of different active measures (training, guidance, subsidised jobs, etc.) in terms of creating lasting employment. The Committee also takes account of constraints on state policy resulting from international economic trends and the complexity of effectively combating unemployment.
45. The Committee takes note of the statistics provided by the complainant union which show a certain deterioration of employment during the period that followed the entry into force of the Act of 20 August 2008. However, it does not consider that the causal link alleged by the CFE-CGC between the deterioration of employment and the annual working days system is pertinent and that the annual working days system is a decisive factor to explain this deterioration.
46. The Committee notes that the arguments put forward by the CFE-CGC deal with the question of the length of working time and that of remuneration of overtime work, both linked to the annual working days system. Therefore, these arguments fall essentially within the ambit both of Article 2 on the right to just conditions of work, in particular paragraph 1 on reasonable working time, and Article 4 on the right to a fair remuneration, in particular paragraph 2 which guarantees increased remuneration for overtime work. The Committee thus refers to its examination of the specific issues raised under Articles 2§1 and 4§2.
47. The Committee holds that the claim concerning the impact of the annual working days system in terms of length of working time and remuneration of overtime work does not come within the scope of Article 1§1 of the Revised Charter.
II. ALLEGED VIOLATION OF ARTICLE 2§1 OF THE REVISED CHARTER
Article 2 – The right to just conditions of work
Part I: All workers have the right to just conditions of work.
Part II: With a view to ensuring the effective exercise of the right to just conditions of work, the Contracting Parties undertake:
1 to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit;
(…)
A – Arguments of the parties
1. The complainant trade union
48. The CFE-CGC considers that the annual working days system established by the Act of 19 January 2000, and retained by the Acts of 17 January 2003 and 20 August 2008, is contrary to Article 2§1 of the Revised Charter.
49. It first contends that the daily and weekly working time remain unreasonable under the current legislation in the same way as they were under the Aubry II and Fillon II Acts. It argues that, under the annual working days system, employees concerned work and are remunerated without any reference to the number of hours worked per day or week. The only limits are to be found in Articles L. 3131-1 and L. 3132-2 of the Labour Code which state that employees are entitled to a daily period of rest of 11 hours and a weekly period of rest of 24 consecutive hours. Employees concerned can therefore find themselves working up to 13 hours a day and 78 hours a week. The CFE-CGC considers that not only a weekly working time of 78 hours is unreasonable, but that the same is true of 13 hours of daily worked hours, in the absence of conditions that can justify such length of working time and a mechanism that ensures compensatory periods of rest.
50. The CFE-CGC considers secondly that the Act of 20 August 2008 does not offer sufficient guarantees, in leaving the organisation of working time essentially to enterprises or works agreements without laying down any statutory limits (Articles L. 3121-39, L. 3121-44, and L. 3121-45 of the Labour Code).
51. Concerning the existence of reasonable reference period to calculate the average length of working time, the complainant trade union refers to the General Introduction to Conclusions XIV-2 which specifies that “periods of up to one year may also be acceptable in exceptional circumstances”. It considers that the extent of the category of staff to whom the annual working days system applies pursuant to the Act at issue is not compatible with the exceptional character mentioned by the Committee.
52. Finally, the complainant trade union considers that the annual working days system results in an increase in the working time of employees concerned. This is in breach of paragraph 1 of Article 2 which provides that a progressive reduction of the working week should be achieved to the extent that the increase of productivity and other relevant factors allow it.
2. The respondent Government
53. The Government underlines that the statutory daily and weekly rest periods mean that a reasonable length of working time is ensured and provide a framework which sets a limit to the weekly working time. Furthermore, it stresses that while the daily working time can reach 13 hours as a result of reducing weekly periods of rest, this represents a hypothetical ceiling and does not automatically lead to a week of 78 hours worked. In this respect it contends that certain collective agreements have laid down limits on daily and weekly working time.
54. As to the existence a legal framework providing sufficient guarantees, the Government mentions the statutory obligation to conclude a collective agreement at enterprise or branch level. It underlines the benefit of such agreements which involve negotiations between social partners and constitute a means of efficiently safeguarding the rights of employees. It considers that a second guarantee lies in the fact that employers must from now on organise annual interviews with members of staff coming under the annual working days system which should deal with the burden of work, the organisation of work, the division between professional and private life, and remuneration (Article L. 3121-46). Furthermore, the staff committee must be consulted every year on the use of conventions on annual working days and their follow-up (Article L. 2323-29). As to enterprise agreements, the Government indicates that the Act of 20 August 2008 provides for new rules concerning trade unions’ representativeness and the validity of collective agreements which have strengthened the legitimacy of collective agreements at enterprise level. Finally, it mentions the additional guarantee resulting from the Act of 20 August 2008 which lays down a ceiling of 235 worked days per year when no limit is fixed by the agreement (Article L. 3121-45).
55. Finally, concerning the argument on the progressive reduction of the working week, the Government recognises that the general principle that managers must enjoy an effective reduction of their working time has not been retained in the Act of 20 August 2008. However, it argues that a great number of branch agreements which have been concluded since do provide for modalities of follow-up regarding the burden of work, limits on the daily working time or specific days of rest which lead to a reduction of the working time.
B – Assessment of the Committee
56. The Committee refers to its assessment of the annual working days system under the previous legislation, which led it to hold that the situation was in breach of Article 2§1 (CFE-CGC v. France, complaint No. 9/2000, decision on the merit of 16 November 2001, §§28 to 38, and CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§ 31 to 41). It will thus examine whether the changes resulting from the Act of 20 August 2008 lead it to change its assessment of the situation.
57. The Committee has already considered that flexible measures regarding working time are not as such in breach of the Revised Charter (see in particular General Introduction, Conclusions XIV-2, p. 33). In order to be found in conformity with the Revised Charter, national laws or regulations must fulfil three criteria:
i. they must prevent unreasonable daily and weekly working time
ii. they must operate within a legal framework providing adequate guarantees
iii. they must provide for reasonable reference periods for the calculation of average working time.
i. Length of daily and weekly working time
58. The Committee observes that the system of annual working days does not set any limit to the daily working time of staff concerned. Consequently, the right to a daily rest period of 11 hours provided for by Article L. 3131-1 of the Labour Code applies. No derogation is permitted. Therefore, staff concerned cannot work for more than 13 hours on any day worked over the year, whatever the circumstances. This daily limit is in conformity with Article 2§1 of the Revised Charter.
59. There is no specific limit to weekly working time either in the annual working days system. Here again it is the minimum rest period provided for in Article L. 3132-2 of the Labour Code which sets a limit to weekly working time. The weekly rest period must be for 35 consecutive hours, i.e. 24 hours of weekly rest provided for by Article L. 3132-2 and 11 hours of daily rest in accordance with Article L. 3131-1. This means that, whatever the circumstances, staff concerned cannot work for more than 78 hours per week. The Committee is nevertheless of the view that this length of working time is manifestly excessive and therefore cannot be considered reasonable within the meaning of Article 2§1 of the Revised Charter.
60. In view of the above, the Committee does not consider it necessary to examine the argument on the progressive reduction of the working week which cannot be separated from the argument already examined.
ii. a legal framework providing adequate guarantees
61. In order to be in conformity with the Revised Charter, a flexible working time system must operate within a precise legal framework which clearly circumscribes the discretion left to employers and employees to vary, by means of a collective agreement, working time.
62. In the instant case, the annual working days system can only be adopted on the basis of collective agreements. Such agreements are required by law to lay down the annual working time and the main characteristics of the annual working time system.
63. However, the Committee observes that the law does not require that collective agreements provide for a maximum daily or weekly limit. It notes that, while they may in practice do so, such agreements are no longer required by law to specify the procedures to monitor the working time of the staff concerned, especially their daily working time and their workload. This is now essentially left to annual individual interviews with the employer (Article L. 3121-46) and an annual consultation of the staff committee (Article L. 2323-29). Therefore, the Committee considers that the guarantees afforded by collective bargaining are not sufficient to comply with Article 2§1.
64. The Committee further observes that collective agreements may be concluded at enterprise level. It considers that the possibility to do so regarding working time is in conformity with Article 2§1 only if specific guarantees are provided for. It observes in this respect that the procedure for contesting collective agreements under Articles L. 2232-12, L. 2232-13 and L. 2232-27 of the Labour Code do not constitute such a guarantee since its use is too hypothetical. Consequently, the Committee holds that the situation is not in conformity with Article 2§1 of the Revised Charter.
iii. a reasonable period for the calculation of average working time.
65. In light of the findings above on the first two criteria, the Committee considers that it is not necessary in the present case to pronounce on the third criterion.
66. In conclusion, the Committee holds that the situation of staff who come under the annual working days system constitutes a violation of Article 2§1 of the Revised Charter given the excessive length of weekly working time permitted and the absence of adequate guarantees.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE REVISED CHARTER
Article 3 – The right to safe and healthy working conditions
Part I: All workers have the right to safe and healthy working conditions.
Part II: With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment;
2 to issue safety and health regulations;
3 to provide for the enforcement of such regulations by measures of supervision;
4 to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions.
A – Arguments of the parties
1. The complainant trade union
67. The complainant trade union contends that the imbalance in the organisation of working time and periods of rest and leisure which is caused by the annual working days system as retained by the Act of 20 August 2008, is in breach of Article 3 by reason of its detrimental effects on the health of employees concerned. It is not clear from the arguments put forward by the CFE-CGC which paragraph of Article 3 is allegedly breached.
2. The respondent Government
68. The Government contends that the national policy on the prevention of occupational risks remains a priority. It notes that the Act of 20 August 2008 contains more protective provisions according to which a collective agreement can set a limit to the length of annual working time (in full compliance with paid leave, rest periods as well as non-worked bank holidays) and, if not it fails to do so, an absolute limit of 235 days per year has now been laid down in law.
B – Assessment of the Committee
69. The Committee stresses that the provisions of the Revised Charter concerning working time are intended to protect workers’ safety and health in an effective manner. The Committee observes that the arguments put forward by the CFE-CGC do not deal with the non-implementation of measures to improve health at work or reduce the number of accidents at work, but exclusively with risks related to the organisation of work, and more specifically to working time. It is true that no worker must be imposed an excessive length of working time and all of them must receive rest periods adequate for recovering from the fatigue of work and of preventive value in reducing risks of health impairment which could result from the accumulation of periods of work without the necessary rest (mutatis mutandis, CGT v. France, complaint No. 22/2003, decision on the merits of 7 December 2004, §34). However, these aspects come within the scope of Article 2§1, not Article 3, and have already been examined.
71. The Committee holds that the claim concerning risks related to the organisation of work, in particular the working time, does not come within the scope of Article 3 of the Revised Charter.
IV. ALLEGED VIOLATION OF ARTICLE 4§2 OF THE REVISED CHARTER
Article 4 – The right to a fair remuneration
Part I: All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.
Part I: With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake:
(…)
2. to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases;
(…)
A – Arguments of the parties
1. The complainant trade union
72. The complainant trade union notes that the disputed provisions set at 218 the number of days worked beyond which an increase rate must be applied to remuneration without however using any time reference in terms of daily, weekly, monthly or annual working hours. Consequently it deems that it is not possible to take account of overtime carried out by employees coming under the annual working days system. It considers that the situation is thus contrary to Article 4 paragraph 2.
2. The respondent Government
73. The Government underlines that, since the Act of 31 March 2005 on the organisation of work in enterprises, any employee coming under the annual working days system which, by an individual convention, work over 218 days, by relinquishing days of leave, receives a remuneration at a higher rate in compensation for overtime. The Act of 20 August 2008 provides that the increased rate should not be lower than 10%. Furthermore, the possibility of bringing legal proceedings under Article L. 3121-47 guarantees respect of the right to fair remuneration.
B – Assessment of the Committee
74. The Committee notes that, in essence, the legislation in force does not modify the situation of employees who come under the annual working days system regarding remuneration of overtime work. It thus refers to its findings in previous complaints which raised the same issue where it found that the situation was in breach of Article 4§2 (CFE-CGC v. France, complaint No. 9/2000, decision on the merits of 16 November 2001, §45; CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§57-59). It will thus examine whether the changes resulting from the Act of 20 August 2008 lead it to change its assessments of the situation.
75. Article 4§2 does authorise exceptions to the right to an increased rate of remuneration for overtime work. The Committee has stated that these exceptions may apply to certain categories of public officials or managers, who must be few in number (Conclusions IX-2 p. 38).
76. The Committee considers that, in the instant case, the number of employees concerned and the nature of their duties clearly excludes them from the scope of the exceptions referred to in Article 4§2. They are therefore entitled for the right embodied in this Article.
77. The Committee considers that the number of hours of work performed by employees who come under the annual working days system and who, under this flexible working time system, do not benefit from a higher rate for overtime is abnormally high. The fact that an increased remuneration is now laid down for the days worked which correspond to the days of leave which the employee under the annual working days system has relinquished cannot be considered sufficient under paragraph 2 of Article 4. In such circumstances, a reference period of one year is excessive.
78. Therefore, the Committee holds that the situation is contrary to Article 4§2 of the Revised Charter on the ground of the remuneration of overtime work as provided for under the annual working days system.
V. ALLEGED VIOLATION OF ARTICLE E TAKEN IN CONJUNCTION WITH ARTICLES 20 AND 27 OF THE REVISED CHARTER
Article E – Non-discrimination
The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.
Article 20 – The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex
Part I: All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.
Part II: With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields:
(…)
c terms of employment and working conditions, including remuneration;
(…)
Article 27 – The right of workers with family responsibilities to equal opportunities and equal treatment
Part I: All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.
Part II: With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:
1 to take appropriate measures:
a to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training;
b to take account of their needs in terms of conditions of employment and social security;
c to develop or promote services, public or private, in particular child day care services and other childcare arrangements;
(…)
A – Arguments of the parties
1. The complainant trade union
79. The complainant union’s reasoning is entirely based on a general allegation of discrimination against employees coming under the annual working days system insofar as both the reasonableness of their working time and their right to a fair remuneration in particular for overtime work are at stake.
2. The respondent Government
80. The Government considers that the annual working days system does not interfere whether directly or indirectly with the exercise of the rights that the state has pledge to respect pursuant to Articles 20 and 27 as well as Article E.
B – Assessment of the Committee
81. The Committee has already stated that Article E cannot be invoked on its own, and has to be combined with one of the rights guaranteed by Charter. This means that it does not constitute an autonomous right which can in itself provide independent grounds for a complaint (Autisme Europe v. France, complaint No. 13/2000, Decision on the merits of 4 November 2003, §51). However, in the instant case, the reasoning of the CFE-CGC relies solely on Article E without any direct link being established between the alleged discrimination and the requirements of Articles 20 and 27, which were raised jointly.
82. The Committee notes incidentally that the impact of the impugned Act cannot be duly assessed without an indepth examination of the situation in the light of the aims of Article 20 or Articles 27, i.e. the right to equal opportunities and treatment in employment and occupation without discrimination between workers based on gender or family responsibilities (see, mutatis mutandis, CFE-CGC v. France, complaint No. 9/2000, Decision on the merits of 16 November 2001, §54). The complainant union does not put forward any argument that would establish the existence of discrimination under Articles 20 and 27.
83. Subsidiarily, the Committee notes that the complainant union’s arguments are based on the alleged discrimination faced by workers under the annual working days system in terms of reasonable working time and fair remuneration. Given that these issues are dealt with under Articles 2 paragraph 1 and 4 paragraph 2 which have been raised separately in this complaint, the Committee therefore decides to refer to its findings under both provisions and considers that it is not necessary to examine here the arguments put forward by the CFE-CGC.
84. The Committee therefore holds that the claim under Article E taken in conjunction with Articles 20 and 27 regarding the impact of the working time and overtime work of employees coming under the annual working days systems is not founded.
V. REQUEST FOR COMPENSATION
A – Arguments of the parties
1. The complainant trade union
85. The CFE-CGC asks the Committee to require France to pay € 7 000 which correspond to the costs incurred for bringing this complaint and the bill issued by the barrister having represented the union.
2. The respondent Government
86. The Government considers that the claim for compensation concerning the costs engaged in lodging this complaint is disproportionate and leaves the matter to the Committee’s discretion.
B – Assessment of the Committee
87. The Committee has already stated that, whilst the Protocol does not regulate the issue of compensation for expenses incurred in connection with complaints, it considers that as a consequence of the quasi-judicial nature of the proceedings under the Protocol in case of a finding of a violation of the Charter, the respondent State should meet at least some of the costs incurred. Furthermore, the Committee of Ministers accepted the principle of such a form of compensation (CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§75-76).
88. Consequently, when such a claim is made, the Committee will examine it and submit its opinion regarding it to the Committee of Ministers, leaving it to the latter to decide how it might invite the Government to meet all or part of these expenses (CFE-CGC v. France, ibid., §77). For costs to be taken into consideration by the Committee, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, mutatis mutandis, judgment of the European Court of Human Rights, Nikolova v. Bulgaria, 25 March 1999, paragraph 79).
89. The Committee first notes that in the instant case the complainant union has produced their barrister’s bill as supporting document of the costs incurred for lodging the complaint which amount € 7 000. However the Committee draws attention to a similar complaint where, in the absence of any supporting documents, it recommended payment a lump sum of € 2 000 as compensation, without the Committee of Ministers giving any follow-up to this recommendation (CFE-CGC v. France, ibid., §80). In the light of the case-file, the Committee considers that in the instant case the amount claimed by the complainant organisation which corresponds to the lawyer’s fees is excessive. Therefore, making its assessment on an equitable basis, the Committee considers that it would be fair to award the complainant union a lump sum of € 2 000. It thus invites the Committee of Ministers to recommend that France pay this sum to the complainant trade union.
CONCLUSION
90. For these reasons, the Committee concludes:
- by 12 votes to 1, that the claim concerning the impact of the annual working days system in terms of length of working time and remuneration of overtime work does not come within the scope of Article 1§1 of the Revised Charter;
- unanimously, that there is a violation of Article 2§1 of the Revised Charter on the ground of the excessive length of weekly working time permitted and the absence of adequate guarantees under the annual working days system;
- by 12 votes to 1, that the claim concerning risks related to the organisation of work, in particular the working time, does not come within the scope of Article 3 of the Revised Charter;
- unanimously, that that there has been a violation of Article 4§2 of the Revised Charter on the ground of the remuneration of overtime work as provided for under the annual working days system;
- by 8 votes to 5, that the claim under Article E taken in conjunction with Articles 20 and 27 regarding the impact of the working time and overtime work of employees coming under the annual working days systems is not founded.
and invites the Committee of Ministers to recommend that France pay the complainant the sum of € 2 000 as compensation for expenses incurred.
Dissenting opinion of Mrs Csilla KOLLONAY LEHOCZKY, joined by Mr Jean Michel BELORGEY, Mrs Lyudmilla HARUTYUNYAN, Mr Petros STANGOS, and Mr Luis JIMENA QUESADA
I dissent from the Committee’s finding that the claim under Article 27 is not founded, while I share the findings of the remainder of the decision. Referring to my dissenting opinion in Complaint No. 16/2000 and relying in part on the grounds set out therein, I think it is pertinent here to recall that the aim of Article 27 is to guarantee the right of workers with family responsibilities to equal opportunities and equal treatment, and in this respect, under paragraph 1.b. to take account of their needs in terms of conditions of employment. The length and regularity of time devoted to work has direct significance for the workers’ family life and for their ability to reconcile family chores with workplace duties. The implementation of this provision therefore requires positive measures, especially measures concerning the length and organization of working time. (Statement of Interpretation on Article 27§1b Conclusions 2005, 2007 all countries).
In my opinion, by insisting on “an in-depth examination” of the impact of the annual work-day system in the present case, the majority has disregarded the evident inherent connection between manifestly excessive working time and disadvantage borne by workers with familial caretaking obligations that “lies in the very nature of family responsibilities” (Conclusions 2003, Sweden, p.637). The impugned Act itself incorporates the issue of the division between professional and private life into a system of annual interviews with the staff concerned – demonstrating the French state’s own recognition of a potential harmful effect.
Besides this element of the annual interviews – found by the Committee insufficient on the whole as a guarantee - the Government has not submitted any information on any specific measure adopted with a view to accommodate the increased disadvantages of workers with family duties under the new working time system in order to take full account of its commitments undertaken by ratifying article 27.
Thus, the annual working days system, in particular its “forfaits-jours” component, besides infringing the right to reasonable working hours, hinders the access to and executing of the managerial positions covered by the legislation for workers with family responsibilities. Consequently, it violates their right, guaranteed by Article 27, to equality of opportunity and equal treatment.
APPENDIX
Decision on admissibility
European Committee of Social Rights
Comité européen des Droits sociaux
DECISION ON ADMISSIBILITY
29 June 2009
Confédération française de l’encadrement CFE-CGC
v. France
Complaint No. 56/2009
The European Committee of Social Rights, committee of independent experts established under Article 25 of the European Social Charter (“the Committee”), during its 237th session attended by:
Mrs Polonca Končar, President
Mssrs Andrzej Swiatkowski, Vice-President
Colm O’CINNEIDE, Vice-President
Jean-Michel Belorgey, General Rapporteur
Mrs Csilla KOLLONAY LEHOCZKY
Mr Lauri LEPPIK
Mrs Monika SCHLACHTER
Lyudmilla HARUTYUNYAN
Mssrs Rüçhan IŞIK
Petros STANGOS
Alexandru ATHANASIU
Luis JIMENA QUESADA
Mrs Jarna PETMAN
Assisted by Mr Régis Brillat, Executive Secretary
Having regard to the complaint dated 30 April 2009, registered on 4 May 2009 as number 56/2009, lodged by Me Jean-Jacques GATINEAU, avocat au Conseil d’Etat et à la Cour de cassation, on behalf of the Confédération française de l’encadrement – Confédération générale des cadres (“the CFE-CGC”), and represented by him according to a mandate signed by the President of the CFE-CGC, Mr Bernard VAN CRAEYNEST, requesting the Committee to find that the situation in France is not in conformity with Articles 1§1, 2§1, 3, 4§2, as well as Articles 20 (c), 27§1 and E of the Revised European Social Charter (“the Revised Charter”);
Having regard to the notification addressed to the French Government (“the Government”) on 18 May 2009;
Having regard to the documents appended to the complaint;
Having regard to the Revised Charter and, in particular, to Articles 1§1, 2§1, 3, 4§2, 20 (c), 27§1 and E which read as follows:
Article 1 – The right to work
Part I: “Everyone shall have the opportunity to earn his living in an occupation freely entered upon.”
Part II: “With a view to ensuring the effective exercise of the right to work, the Parties undertake:
1 to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment;
(…)”
Article 2 – The right to just conditions of work
Part I: “All workers have the right to just conditions of work.”
Part II: “With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake:
1 to provide for reasonable daily and weekly working hours, the working week to be progressively reduces to the extent that the increase of productivity and other relevant factors permit;
(…)”
Article 3 – The right to safe and healthy working conditions
Part I: “All workers have the right to safe and healthy working conditions.”
Part II: “With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment;
2 to issue safety and health regulations;
3 to provide for the enforcement of such regulations by measures of supervision;
4 to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions.”
Article 4 – The right to a fair remuneration
Part I: “All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.”
Part II: “With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake:
2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases ;
(…)”
Article 20 – The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex
Part I: “All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.”
Part II: “With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: (…)
c terms of employment and working conditions, including remuneration;
(…)”
Article 27 – The right of workers with family responsibilities to equal opportunities and equal treatment
Part I: “All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.”
Part II: “With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:
1 to take appropriate measures:
a to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training;
b to take account of their needs in terms of conditions of employment and social security;
(…)”
Article E – Non-discrimination
“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
Having regard to the Additional Protocol to the European Social Charter providing for a system of collective complaints (“the Protocol”);
Having regard to the Rules of the Committee adopted by the Committee on 29 March 2004 at its 201st session and revised on 12 May 2005 at its 207th session and on 20 February 2009 at its 234th session (“the Rules”);
Having deliberated on 29 June 2009;
Delivers the following decision, adopted on the above-mentioned date:
1. The CFE-CGC, referring in particular to Working Hours Act No. 2008-789 of 20 August 2008 (Official Gazette of the French Republic of 21 August 2008) claims that:
- the annual working days system infringes the right to work provided by Article 1§1 of the Revised Charter in that it induces an increase in employees’ workload which has a detrimental effect on job creation;
- the annual working days system, in particular its “forfaits-jours” component, infringes the right to reasonable working hours provided by Article 2§1 of the Revised Charter;
- the annual working days system infringes the right to safe and healthy working conditions provided by Article 3 of the Revised Charter by reason of its adverse consequences on employees’ health;
- the annual working days system, in particular its “forfaits-jours” component, infringes the right to a fair remuneration provided by Article 4§2 of the Revised Charter;
- the annual working days system, in particular its “forfaits-jours” component, infringes the right to equal treatment in matters of employment and occupation without discrimination on the grounds of sex provided by Article 20, the right of workers with family responsibilities to equal treatment provided by Article 27 and the right not to be discriminated against in the enjoyment of the rights protected by the Revised Charter provided by Article E, in that this system and its “forfaits-jours” component apply only to certain employees and violate their rights to reasonable working hours and to a fair remuneration.
THE LAW
2. The Committee observes that, in accordance with Article 4 of the Protocol, which was ratified by France on 7 May 1999 and entered into force for this state on 1 July 1999, the complaint has been submitted in writing and concerns Articles 1§1, 2§1, 3, 4§2, 20 (c), 27§1 of the Revised Charter, provisions accepted by France when it ratified this treaty on 7 May 1999 and to which it is bound since the entry into force of this treaty in its respect on 1 July 1999.
3. Moreover, the grounds for the complaint are indicated.
4. Exercising its activities in France, the CFE-CGC is a trade union within the jurisdiction of this country as required by Article 1 (c) of the Protocol.
5. The Committee has already considered that the CFE-CGC is a representative trade union for the purposes of the collective complaints procedure (CFE-CGC v. France, complaint n° 9/2000, decision on admissibility of 6 November 2000, §7; CFE-CGC v. France, complaint n° 16/2003, decision on admissibility of 16 June 2003, §7). It confirms this decision since no significant change has taken place.
6. Moreover, the complaint submitted on behalf of the CFE-CGC is signed by Me Jean-Jacques GATINEAU, entitled to represent the trade union in respect of this complaint, as established by the mandate signed by Mr Bernard VAN CRAEYNEST, President of the CFE-CGC, who has capacity to bring or defend legal proceedings on behalf of the CFE-CGC, in accordance with Article 27 of the trade union’s statutes. The Committee, therefore, considers that the condition provided for in Rule 23 of the Rules of procedure is fulfilled.
7. For these reasons, the Committee, without finding it necessary to invite the Government to submit observations on admissibility (Article 6 of the Protocol and Rule 29§3), on the basis of the report presented by Mr Alexandru ATHANASIU and without prejudice to its decision on the merits of the complaint,
DECLARES THE COMPLAINT ADMISSIBLE
In application of Article 7§1 of the Protocol, requests the Executive Secretary to notify the complainant organisation and the Respondent State of the present decision, to transmit it to the parties to the Protocol and the states having submitted a declaration pursuant to Article D paragraph 2 of the Revised Charter, and to make it public.
Requests the Executive Secretary to publish the decision on the Internet site of the Council of Europe.
Invites the Government to make written submissions on the merits of the complaint by 25 September 2009.
Invites the CFE-CGC to submit a response to the Government’s submissions by a deadline which it shall determine.
Invites parties to the Protocol and the states having submitted a declaration pursuant to Article D paragraph 2 of the Revised Charter to make comments by 25 September 2009, should they so wish.
In application of Article 7§2 of the Protocol, invites the international organisations of employers or workers mentioned in Article 27§2 of the Charter to make observations by 25 September 2009.
[1] It is recalled that pursuant to Article 8§2 of the Protocol, this report will not be made public until after the Committee of Ministers has adopted a resolution, or no later than four months after it has been transmitted to the Committee of Ministers, namely 14 January 2011.
[2] This report may be subject to editorial revision.