Jean-Denis Combrexelle submits his report on collective bargaining, work and employment

Jean-Denis Combrexelle presented the Prime Minister and Myriam El Khomri with his report entitled "Collective bargaining, work and employment". This report proposes to change the logic by placing more trust in bargaining within branches and within companies and by widening their place in labor law.

In February, Manuel Valls announced to the social partners that he wished to initiate a reform to give collective bargaining a greater place in our industrial relations system, and asked Jean-Denis Combrexelle, one of the best connoisseurs of labor law. work and social relations in France, to develop proposals.

“It's a fact: our labor code has become too complex, sometimes even illegible, with provisions that have accumulated over the years. Consequences: employees ignore their rights; small businesses, those which do not have the legal means, encounter the greatest difficulties in mastering the rules ”, the Prime Minister recalled this Wednesday, September 9, receiving the report from Mr Combrexelle.

"The rules that govern the lives of employees and companies must be defined as closely as possible to needs", he added. 

To prepare this report, Jean-Denis Combrexelle relied on a working group made up of experts and practitioners, economists and lawyers, French and foreign. In addition, around thirty hearings were organized, in particular with the social partners.

Going beyond a false consensus

In appearance, all the actors, managers and commentators agree: social dialogue must be developed, and more particularly one of its privileged tools, the collective agreement signed between representative social partners. Social dialogue is presented as the point of convergence which would ensure economic efficiency and social progress.

In practice, this consensus is in fact based on misunderstandings and remains superficial, in particular because of the complexity of the rules that apply. Misunderstood, social negotiation seems to many to be outdated in a context of crisis and "uberization" of our economy.

The purpose of this report is therefore not to limit oneself to a reflection on the right to collective bargaining and the possible modification of a particular article of the labor code, but to show how to develop collective bargaining in order to make a good tool for economic and social regulation. We have to get out of a purely legal, formal and institutional logic, which is too common in our country, to give actors a real taste, will and capacity, not to negotiate, since they already do it, but to do negotiation a real lever for transformation at the service of employment and business competitiveness.

Current obstacles to negotiation

The results of the negotiations show that France is a country which has made the choice, through various legislative reforms, and especially over the past fifteen years, of greatly expanding the field of collective bargaining.

If the quantitative balance of the negotiations is positive, with a high number of signed agreements, the qualitative balance is more discussed and one can only note and regret that the social partners have not seized more of the possibilities which have been given to them. by these successive reforms.

In reality, there are many obstacles:

• the referral to negotiation is often the subject of a legitimacy trial, in particular of all the actors who develop, comment and control the legislative standard. Not because the State would at all costs impose standards on civil society and make the labor code even "bigger". But because all the players wish, at each stage of the development of the standard, to make it a little more secure by detailing it;
• for employers, negotiation is more seen as a constraint and a cost only as a performance lever;
• for union actors, collective bargaining is difficult to conduct in a context of crisis and absence of "grain to grind".

Create a negotiation dynamic

This report addresses the question of the actors and the means of negotiation before that of the legal architecture of the agreements. It is not a choice of comfort aiming to evoke subjects deemed vague and consensual on the practices of negotiation to delay the time to deal with questions deemed more delicate on the right to collective bargaining.

Giving more room to negotiation, whether a company or a branch, is first of all a stake in stimulating behavior before being that of an articulation of different sources of standards.

proposals

• Develop a collective bargaining pedagogy demonstrating the rational and necessary character of it in a competitive context and economic crisis and establishing mutual trust.
• Act on representations, in particular through awareness-raising actions, training, organization of HR managers, to enhance social dialogue.
• Changing the conditions of negotiation and its “rules of the game”: method agreements must be a prerequisite for negotiation.
• Importance of the "time factor": act on the tempo of negotiation, limit the duration of branch and company agreements, review the rules for the revision and evolution over time of agreements, regulate over time the conditions for legal recourse against collective agreements.
• Improve the intelligibility of agreements, facilitate their understanding and interpretation, define the conditions for direct information to employees on the content of agreements, share knowledge on collective bargaining.
• Confirm the role of state guarantor (as accompanying the negotiation and guarantor of the legality of the agreements): maintenance of the procedure of extension of the branch agreements, possibility of checking the legality of the company agreements but limitation of the subjects subjected to the "administered negotiation".
• Highlight informal social dialogue practices.

Opening new fields for negotiation

The question is not to fix an ideal size of the labor code but to think about a new architecture ensuring the complementarity and the balances between the different modes of regulation.

The general principle is to give more space to collective bargaining. This does not systematically involve an explicit extension of a field to collective bargaining at the expense of the law.

The labor code, in its current form, is characterized by a great complexity of the law where it is very difficult to determine, on a given subject, the room for maneuver which is left to the negotiators of a sectoral agreement or business.

The simple clarification and rationalization of the texts passing through a separation between what concerns public order, the reference to negotiation and the suppletive will sometimes be enough to give a welcome breath to social dialogue and negotiation. There is a break with the method of developing the labor code that has characterized these past decades. Therefore, everything cannot be done all at once, you have to prioritize.

proposals

• Regulate the production of legislative standards: set an annual social agenda and delete a provision which has become obsolete for any new provision adopted.

Short term (2016):

• After consultation with the social partners, clarify and widen the field of social negotiation in the fields of working conditions, working time, employment and wages (ACTES) by giving priority to the company agreement . For example: for working conditions, widen the field of negotiation on the methods of work organization and management; for working time, consider, within a framework defined by law, to open negotiations on the threshold for triggering overtime and secure the packages / days; for employment, allow negotiation on hiring conditions and professional transition arrangements; for salaries, clarify the negotiation possibilities on the sharing of added value.
• Subject to the definition of legislative and conventional public sector orders, in these four areas, the company agreement applies as a priority; failing this, the additional provisions of the branch agreement apply; in the absence of a collective agreement for a company or branch, the supplementary provisions, explicitly qualified as such, apply the labor code. Assessment of the measure in four years.
• Open new fields of social relations to negotiation: corporate social responsibility (CSR) and, with a legal mandate, digital economy.
• Define the missions of the branches: specify what falls within the scope of conventional public order, define additional stipulations that apply in the absence of a company agreement, offer services in particular vis-à-vis VSEs (standard agreements), support the negotiation of SMEs, organize the forward management of jobs and skills at branch level.
• Provide a mechanism for merging branches who represent less than 5 employees with a collective hosting agreement, within three years.
• Give precedence, in the general interest and the collective interest of employees, to collective agreements preserving employment over employment contracts.
• Generalize the principle of the majority company agreement from 2017.
• Maintain the principle of prior consultation provided for in article L.1 of the labor code with freedom of choice for the social partners between recourse to a national inter-professional agreement or "common position".
• Assimilate group agreements to company agreements and provide that group agreements organize the articulation of group agreements / companies / establishments.
• Give the option, by majority agreement, to group the negotiation of company agreements into two categories of themes (with quadrennial frequency).
• Grant legislative recognition to "negotiated territorial arrangements" and experiment with supply chain agreements. Highlight the good practices of transnational agreements.

Long term (four years):

• New architecture of the labor code, to distinguish between all of the provisions that pertains to public order, the framed referral to collective bargaining and that which is suppletive in the absence of negotiation.
• Constitutional reform: enshrine in the preamble to the Constitution the main principles of collective bargaining.

Download the full report on "Collective bargaining, work and employment"

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