• The social dialogue

Pursuing the previous reforms aimed at a contractualisation of Labour law, Order No. 2017-1385 relating to the reinforcement of collective bargaining facilitates company-level bargaining, for a greater adaptability of the social norm, while Order No. 2017-1388 relating to the collective bargaining scope redefines the conditions for extending and broadening collective agreements.  But if more weight is to be given to company-level bargaining, then companies should be given the means for effective and fair bargaining, carried out by competent and consistent actors.  This is the objective of Order No. 2017-1386 relating to the new organization of the social and economic dialogue within a company and facilitating the carrying out and valuation of trade-union responsibilities, which clarifies the scope and facilitates the conditions of the social dialogue.

First, the Order No. 2017-1385 redefines the rules of articulation between branch agreements and company agreements. The primacy of the company agreement becomes the principle, pursuant to article L. 2253-3 of the Labour code. The branch agreement applies only as an alternative, namely in the absence of a company agreement.

In order to give companies the means to implement the new social model based on company-level bargaining, the Order also recognizes a universal right to bargaining by facilitating its conditions in the absence of union representatives. As an example, in companies with fewer than 11 employees without any elected representatives, it is now possible to negotiate directly with employees, on all subjects.  However, in order to be valid, the agreement must be approved by a two-thirds majority.

The reinforcement of company-level bargaining has also been transformed for the simplification of social dialogue within the company.  It consists in making this dialogue possible and making all voices audible, winning for all.  The reinforcement of company-level bargaining also requires the setting-up of systems which make it attractive to carry out a trade union mission, in order to encourage employees to get involved in representation and bargaining. It is Order No. 2017-1386 which aims at this double objective.

To simplify the social dialogue and make it more operational, the Order seeks to facilitate the conditions of trade-union presence by laying down the rule of staff representation uniqueness. The unique staff representation is made possible by the merger of the staff representatives, the employee representative committee and the health and safety committee into a new body, the Social and economic committee (CSE).  In this respect, the reform is radical: the setting-up of the CSE is imposed on all companies and shall be effective on 31 December 2019 at the latest. Furthermore, a more complete form of the CSE, the company council, may be put in place by a majority company agreement or by an extended branch agreement. Composed of the CSE elected members, the company council enjoys, in addition to the triple competence of the staff representatives, the employee representative committee and the health and safety committee, that of collective bargaining.

Also to simplify and reinforce the social dialogue, especially within the company, the Order redefines certain conditions for the performance of trade union duties in order to highlight them. Moreover, elected members of the CSE shall not be able to carry out more than three successive missions, unless the pre-election agreement provides otherwise and except in companies with fewer than 50 employees. Just like political democracy, social democracy can function only if does not get stuck in representative functions…

• Work relationships

After the flexibility of the norm, the flexibility of employment.  It is Order No. 2017-1387 relating to the predictability and securing of work relationships which deals with this objective, by loosening the management features of the work relationship.  This same Order, along with Order 2017-1389 relating to the prevention and the taking into account of the effects of being exposed to certain professional risk factors and to the prevention professional account, also try to improve a certain number of measures relating to the taking into consideration of the employee’s state of health, by providing some detail on incompetence and by confirming certain changes with respect to the taking into account of arduous occupations.

The Order No. 2017-1387 reinforces the flexibility of the work relationship, particularly by facilitating telework and the use of CDDs (fixed-term contracts), which reflects the will of the government to soften the execution features of the work relationship, but also by facilitating dismissals, be they individual or collective, expressing here the will of the government to soften the termination features of the work relationship.

Regarding the softening of the termination features of the work relationship, both individual dismissal and collective redundancies are made easier and/or less costly, at least in theory.

Regarding individual dismissal, several important changes must be noted.  A standard model letter must be proposed by the social partners and its content must be fixed by decrees to be published within the next few days.  If the meaning of the measure is to be understood in light of the objective of Labour law simplification, especially for small companies, it is worth remembering that any standard model is limited due to the peculiarity of each work relationship and of the powers of control and assessment of the judge who, undoubtedly, shall continue to be demanding in terms of dismissal notification.  However, on a point, the judge is required to moderate his intransigence.  Indeed, the Order provides that the lack of stated reasons alone, which may be rectified subsequently even during the proceedings, no longer prevents the dismissal of a real and serious cause.  Here is a major upheaval of our law, calling into question a case law well-established for nearly 30 years. Furthermore, except in case of an invalid dismissal, damages owed in case of a dismissal without a real and serious cause are subject to a scale, fixing floors and ceilings.  In exchange of this ceiling, the severance pay is increased by 25% in respect of the 10 first years of seniority, while the condition of seniority to benefit therefrom is lowered from 12 to 8 months.  Finally, the time frames to take action are reduced and harmonised to 12 months, except in case of discrimination or harassment.

Regarding collective redundancies, here again there are many innovations intended to, according to the French president’s report, give companies the ability to anticipate and adapt in a simple, quick and secure way to imperative changes.  Based on the rule in force in numerous neighbouring countries, the reform revises the field of the obligation of redeployment and that of the assessment of economic grounds, applying it to French national territory. Moreover, following the model of individual contractual termination, a collective contractual termination is established for which an attractive social and tax regime must be proposed by the finance and social security financing law for 2018…