François Vergne | Partner, Paris

Pursuant to a law passed on August 20, 2008, the right of employees to organize and operate unions will be based primarily on the election results of works councils or personnel delegates.

Since 1966, five nationally recognized unions (Confédération Générale du Travail (CGT), Confédération Française Démocratique du Travail (CFDT), Force Ouvrière (FO), Confédération Française des Travailleurs Chrétiens (CFTC), and Confédération Française de l'Encadrement – Confédération Générale des Cadres (CFE-CGC)) and their affiliates have been considered “representative.”  Such “deemed representativity”¹ allows them to present candidates in the first round of voting for elections of works councils or personnel delegates, establish presence in enterprises, and negotiate collective bargaining agreements in any business or branch, irrespective of their effective weight in such businesses or branches.

The establishment of unions that did not benefit from the “deemed representativity” was subject to the affirmative proof of this “representativity,” which depended on the criteria defined by statute and case law, including number of members, independence, dues, experience, longevity, and their patriotic behavior during the German occupation of France during World War II.

The fact that five unions were deemed representative led to a dispersion of the French labor unions, which are often considered by observers (such as labor specialists, journalists, and politicians) as lacking legitimacy.

This created no difficulties at a time when collective bargaining could only result in labor provisions that were more favorable to the employees than the law or a collective bargaining agreement entered into at a higher level (i.e., at branch or at industry level—principe de faveur).

However in recent years, new government legislation has reversed this trend, progressively authorizing employers and employee unions to adopt, pursuant to collective bargaining agreements entered into at the company level, provisions whose terms were less favorable to employees than the law or a higher-level collective bargaining agreement. This shed a new light on the question of the unions’ “representativity.”

The New Legislation
Following an exchange of views which resulted in a “common position” of the two main national union organizations (CGT and CFDT), new legislation was passed that redefined the criteria of “representativity” by giving major weight to the preferences of the unions’ members, based on the results in the most recent elections for works councils or personal delegates.

The new law also defined the lowest percentage of votes by which a union organization is considered to be “representative” in the negotiation and signing of collective bargaining agreements. That floor amount established that no less than 10% of the total number of votes is required at the company level, and no less than 8% at the branch or national level.

To be considered “representative,” unions must prove (i) sufficient length of existence (at least two years), (ii) independence, (iii) adherence to republican values, (iv) influence, (v) number of members and payment dues, (vi) financial transparency, and (vii) electoral weight (equaling at least 10% of the votes in the first round of voting of the elections of works councils or personnel delegates in a company). Local unions affiliated with a national organization must satisfy criteria (i) through (iii).

Unions that fulfill criteria (i) through (iii) and are affiliated with a national union can:

Unions that fulfill criteria (i) through (vii) can:

The rules of validity of collective bargaining agreements also have been redefined. To be valid and enforceable, a collective bargaining agreement:

In short, union presence and the validity of collective bargaining agreements will now depend on the electoral weight of the unions, with the floor amount requirements ranging from 10% to 50% of votes.

The above rules apply to election results occurring after January 1, 2009. At branch and national levels, the reform will enter into effect progressively, becoming fully effective in 2013.

Finally, the new legislation provides that from January 1, 2010, subject to certain conditions, businesses whose employees have no union representation will be able to enter into collective bargaining agreements with employee representatives such as works councils and personnel delegates.

¹ The term “representativity” is a direct translation from the French, meaning "the ability for a labor union to negotiate a collective agreement.” A representative union may establish a presence in an enterprise, irrespective of its actual influence in such enterprise.