Employee relations and union representation

The Labour Code provided for the presumption that the five major post-second world war unions were considered to represent employees on a national basis. These unions (CFDT, CFE-CGC, CFTC, CGT and CGT-FO) were until now legally considered to represent employees, and this representation could not be disproved

Working time

The threshold for working time was fixed at 35 hours per week, providing very strict situations in which this threshold could be exceeded. In particular, an overtime quota was applied to employees to limit the number of overtime hours possible to a statutory maximum of 220 hours, some collective bargaining agreements reducing this to as little as 130 hours over the year. There was an obligation to obtain authorisation from the labour inspectorate if this quota was to be exceeded. Employees whose working time was calculated in days over the year were limited to a maximum of 218 days, which could only be exceeded in very limited circumstances. 

New Legislation

A new law was passed on 20 August 2008 modifying both employee relations and union representation, and working time – considered by French press as "the end of the 35 hour week".

Employee relations and union representation

The first section of the law removes the presumption applied to the five post-war unions, and their representative nature is no longer guaranteed.

The 7 criteria to be taken into account for a trade union to be considered as representative are (i) respecting republican values, (ii) independence, (iii) financial transparency, (ii) a minimum of 2 years of activity within the geographical and activity sector, (v) the audience, based on the level of negotiation (vi) the influence of the union, and (vii) the number of members and subscriptions.

Working time

This section of the law does not in fact remove the legal threshold for working time at 35 hours per week, but rather enables companies to negotiate flexibility on this threshold and increase the actual number of hours worked. The main provisions of this section of the law are those relating to overtime quota and the terms applicable to working time calculated in hours or days over the year.

  • Overtime quota and payment: The maximum annual quota for overtime shall be defined by collective bargaining agreement, or in the absence of any such agreement, by legislative decree. The company shall be required to consult with the works council or employee representatives annually on the overtime hours worked within the company. It will be no longer necessary for the labour administration to authorise employees to work more overtime hours than defined by the quota, the terms and conditions of doing so being defined by collective agreement.
  • Working time in hours or days over the year: The law provides the possibility for both managers' and non managers' working time to be defined in hours over the year, but only for those employees who can be shown to be autonomous in the organisation of their work schedule.

The organisation of working time in days over the year is only possible for managerial employees who are considered to be autonomous, and employees whose working time cannot be determined in advance. The annual number of days to be worked is defined by collective bargaining agreement or in the absence of such an agreement by consultation with employee representatives, within the maximum limit of 218 days per year. However, the new law provides that the number of days worked may exceed 218 per year if the employee volunteers to work additional days. Any such additional days worked will be paid with a minimum premium of 10% of the employee's basic salary. The absolute maximum number of days that can be worked in total will either be defined by the applicable collective bargaining agreement, or will be limited to 235 days where no collective bargaining provisions are stipulated. In theory, the collective bargaining agreement could apply a higher limit, up to 282 days per year.

Effect on Employers

Employee relations and union representation

While the presumption will continue to apply for a temporary period, it is a major issue in that the next elections on a company level will define the representation held by each union. The aim of this law is to reinforce the implication of trade unions in small businesses in France, following the lead of other European countries.

Working time

The modification to the overtime quota will effectively remove the main blocking points on employees working a considerably higher number of hours, provided that companies are willing to pay the premium required.

With respect to employees whose working time is calculated in days over the year, they will no longer be limited by such stringent conditions, and will be in a position to volunteer to waive their right to certain days off in lieu. Employers will again be able to benefit from employees who are willing to work more time, bearing in mind the additional compensation that will be required.