France: As mass protests and strikes loom, the challenges and potential of a movement to defeat the work law

Lisbeth Latham
Today (March 31) workers, students, unemployed and retirees will join the fourth mass mobilisation against the attemps of the Parti Socialiste lead government of Prime Minister Emmanual Valls to pass a new work law. This new legislation if passed will significantly reduce the rights of French workers The, legislation which is popularly referred to as El Khomri, in reference to labour minister Myriam El Khomri, will deepen the efforts of previous efforts by both the current PS government and earlier right-wing government’s to make workers and other popular sections of French society pay for capital’s crisis. Despite the mobilisations against the law, media commentary are seeking to portray these mobilisations as fruitless against the inevitable introduction of the "necessary" liberalisation of France’s labour laws. This dismissal has centred on the relatively small size of the current movement in comparison to previous French mass mobilisations around workers’ rights. This article will explore the proposed bill and the emerging movement against the new laws comparing this movement with previous mass French mobilisations within the world of work and examining the new challenges it faces within current political landscape in France.

The initial proposed bill contained significant attacks on both working conditions and unions, these included:

Increased number of consecutive weeks where workers can be required to work overtime – the French working week is 35 hours, however this can currently be increased to 44 hours (with paid overtime) for a period of 12 consecutive weeks. The bill would this to be extended 16 consecutive weeks – where an enterprise agreement had been reached this could be extended to 46 hours over a maximum of 16 weeks;

Capping of payments to workers who are unfairly dismissed at 15 months of salary;

Making It easier to for employers to force part-time employment – current provision requires that for part-time work to be implemented, the employer must give prior notification to the labor inspectorate in order to avoid abuse. The bill proposed that the employer be able implement part-time work unilaterally;

Removal of the legal entitlement to bereavement leave (presently set at two days) with local agreements determine whether workers have access to such leave and its duration;

Increase in the maximum duration of night work from 40 hours per week for three months to 40 hours a week for four months;

Increased use of "package-days" where work is expressed in days rather than hours – 50% of French managers already are employed on this basis – the change would extend the practice to more workers – with enterprises with less than 50 employees not needing an enterprise agreement to implement. The proposal would also remove responsibility for ensuring workers take minimum hours of rest between work days or days off;

Varying of work time over three years. Under France’s 35 hour week it is possible for hours to be averaged over a number of weeks (if the average over this time is not above 35 hours) then no overtime is paid. If there is no enterprise agreement then the maximum span of time that hours can be averaged over is four weeks – with an agreement the maximum is one year. The proposed change is that this be extended to three years. In companies with less than 50 employees were no agreement is in place the four weeks could be extended to sixteen weeks;

Increase in the work week for apprentices under the age of 18 – the current maximum working hours are 35 hours per week and eight hours a day – the new maximums would be 40 hours a week and ten hours – this increase would not need to be approved by the labour inspectorate;

Making it easier for employers to force through enterprise level agreements – current provisions requires that for an enterprise agreement to be valid it must be agreed to by one or more unions representing 30% of employees (based on votes France’s union representative elections) and that the agreement is not opposed by unions representing more than 50% of workers. The new law would allow a company referendum will validate an agreement even if the unions representing 70% of workers are opposed;

Companies would be able to reduce wages or increase working hours (with no increase in wages) even when company is not having financial difficulties. Currently can do this (for a maximum of two years) if they are facing financial difficulties if workers and unions agreed – the proposed change would allow companies to propose the change if they felt it would enable them to meet a business opportunity, to do so they would be able to bypass unions and put a vote to workers – if a majority approved the change any worker who refused to accept the change could be sacked without any redundancy payment;

Ending the right to  11 consecutive hours of rest between "package-days" – instead breaks would be able to be broken up with periods of work within these 11 hours. If a worker is on call then on call, the period that they on call and not  engaged in work would count as part of the rest period;

Change of mission of occupational physicians – occupational physicians are currently primarily responsible for prevention of workplace injury, and is in place with a focus on the health of workers. Their objective is to maintain of employees to perform their duties - by proposing adaptations to them if necessary. The new bill would give physicians a new mission: to certify "the ability of the employee to exercise any of the existing tasks in the company" and "to ensure the compatibility of the worker's health the position to which he is assigned" – which is an inversion of the current role and significant attack on workplace safety;

Leave during natural disaster no longer be legally guaranteed - currently the length of leave for natural disasters is 20 days guaranteed by law. With the bill, it is the branch or company agreement that will define its duration and the conditions for access;

The duration and terms of a sabbatical would no longer guaranteed by law - the minimum duration of the sabbatical leave is currently set at a minimum of six months  and a maximum of eleven months. With the bill, any access to a sabbatical, and its duration, would be defined in an enterprise or branch agreement;

Weakening of job training programs – currently young workers or older unemployed workers can enter into a "professional contract" which includes on the job training for a recognised qualification while receiving a subsidised wage – the bill would allow these contract to include more limited on the job training that would not result in a recognised qualification;

Increased use of three year wage deals – currently there are mandatory annual negotiations on wages. Since 2015, it is possible for an enterprise to hold its negotiations every three years if there is a majority agreement in place in that company. The bill will allow a branch agreement to be negotiated triennially based on 30% support in that branch of industry;

Allow for the state to finance private apprenticeship training providers;

Facilitate dismissals during the transfer of business - currently, when a company sells all or part of its business, jobs are maintained and work contracts are automatically transferred into the new structure. The bill will provide for a portion of employees to be transferred with the business, but will allow for the dismissal of others;

Allow for part-time worker to be paid less for additional hours – currently when part-time workers work hours in addition to their contract they get a differented payment of additional wages – for those hours that constitute upto 1/10 of the contracted hours they receive a loading of 10% on the additional hours worked and a loading of 25% for all hours in addition to this – only a branch agreement can change this arrangement to a flat additional payment of 10%. Under the bill all part-time workers would receive a 10% loading – this change will have a significant impact on gender equality as women workers make up 82% of all part-time workers in France;

Reduce notice period for changes in rosters – currently part-time employees must given seven days notice of a change in their work schedule – only a branch or enterprise can reduce this to a shorter period (with a minimum of three days). The bill provides for that the schedule change is possible for all part-time workers with three days notice;

Employers able to change paid leave arrangements at short notice - the law currently provides that employers should take into account workers’ family situations when determining dates for paid leave. Within a month scheduled beginning of a workers’ leave the employer has no right to change the start or finish dates of the leave. With the proposed bill, these mandatory measures were transformed into 'supplemental' provisions. They can be challenged by way of enterprise or branch agreement;

Under the bill enterprise agreements would have a maximum of 5 years – Current enterprise agreements last indefinitely, unless otherwise provided in the Agreement, or terminated by either party. The agreement can be unilaterally denounced by trade unions signatories or by the employer. In this case, the rights and entitlements within the agreement continue to apply until there is a new agreement. Once terminated there is a three-month notice period before renegotiation begins, allowing trade unions to prepare, inform and mobilize workers ... With the proposed bill, all enterprise agreements have a term of 5 years. The provisions of the agreement are immediately canceled and cease to apply, even if there is no new agreement. There is no notice period prior to the beginning of negotiations;

Overpayment: employment centre can draw directly on unemployment benefits - When an employment centre claims to have made a mistake in the payment of unemployment benefits and wishes to recover the overpayment it must get the approval of a judge. This ensures that the overpayment was actually made (sometimes it hasn’t been) and allows the unemployed person to arrange for repayments to be made in instalments. With the proposed bill the judge's approval is no longer mandatory. The employment centre will directly deduct the overpayment from following month’s benefits payment. If the employment centre made a mistake, it unemployed person to go to court to their money repaid. This risks unemployed workers suddenly facing having little or no money one month to another. The spreading of repayments, which has been previously easily accessed, will be much harder to obtain;

On call-time may be counted as rest time – in violation of the European Committee on Social Rights requirements that time when works are required to be on call not be counted as mandated rest-time between working time the proposed bill will allow this to occur;

Reduced protections for employees who invalidly made redundant - when a court declares a redundancy void the worker is entitled to reinstatement. When this is not possible the current law provides 12 months of salary compensation to a minimum. The new law will limit this to six months, and this will only be for works with at least two years of service with the company;

Lower allowances for dismissed sick and injured workers - when a worker is dismissed for incapacity following an industrial accident or an occupational disease and the employer took no steps to find alternative work or arangements – the dismissal is not valid. The current law provides for compensation of a minimum of 12 months of salary. The bill proposes that this be only 6 months salary;

Enterprise agreements will be able to reduce overtime payments – the Labour Code provides that the first eight hours of overtime attract a penalty rate of 25% with subsequent hours paid an additional 50%. Under the proposed bill management will be able through an enterprise agreement to reduce the overtime rate to a flat 10% rate.

The government has motivated these changes on the idea that France’s existing labour code deter investment in the French economy and discourage companies from taking advantage of business opportunities (for fear of a subsequent contraction in the business) – the reality is that much of the changes have a significant capacity to undermine job creation – this is particularly the case for the provisions for increasing the work week – even those that supposedly make investment "less risky" they don’t address the key cause of France’s economic woes (the ongoing effect of the GFC) nor do they address the reality that outside of a sharp decline in demand companies have the capacity to adjust employment numbers without recourse to redundancy through mechanisms of natural attrition.

Blaming the growth on precarious employment in France on "rigid employment laws" is undermined by the reality that more liberalised labour markets, like Australia, have extremely high levels of insecure and precarious employment.

The proposed bill has caused widespread anger across France – with opinion polls indicating 70% opposition. A change.org petition against the bill launched in February received 200, 000 signitures in the first four hours of being online, the petition has now been signed by more than 1.2 million people.

March 9 strikes and mobilisations
Strikes and mobilisations were called in 140 cities and towns across France for March 9. These protests were supported by the three most militant union confederations – the CGT (Confédération générale du travail – General Confederation of Labour), FO (Force Ouvri – Workers Force) and the trade union Solidaires – in addition the call for the mobilisation was supported the large education union the FSU (Fédération syndicale unitaire – United Union Federation)and the university and high school student unions UNEF (Union Nationale des Étudiants de France – National Union of Students of France), FIDL (Fédération indépendante et démocratique lycéenne Independent and Democratic Secondary Student Federation) and UNL (Union Nationale Lycéenne – National Union of Secondary Students). Between 250, 000 and 500, 000 people participated in the protests across France (both the unions and the interior ministry employ official protest counters to count the size of protests – these counters differ in their methodology as to who should be included as a participant in the protests – with police only including those who within the confines of the march on the street – whilst the union counters will tend to include those who are on the edges of protests along the footpaths – which particularly makes sense on big mobilisations).Think this is too long to be in brackets and needs some full stops and that. The largest of these was held in Paris with between 27, 000 and 100, 000 participating in three protests across the day. In addition to the protests a number largest of these was in the SNCF (France’s national rail system) where four main rail unions (including reformist unions such as the Confédération française démocratique du travail (French Democratic Confederation of Labour - CFDT) and the Union nationale des syndicats autonomes (National Union of Autonomous Trade Unions)) had issued a strike notice resulting in significant disruptions to rail services over a range of issues including the ongoing reduction in the SNCF workforce via natural attrition of some 25, 000 workers over the past decade.

At the Paris union march from the MEDEF (Mouvement des entreprises de France – Movement of the Enterprises of France) to the ministry of labour, CGT general secretary Philippe Martinez told the crowd that in the CGT’s call (reformatting) that the government withdraw the bill that "The message is clear. Mr Hollande and Manuel Valls to stop incorporating the proposals of employers".

Some of the student slogans at the March 17 and March 24 protests included:
“On strike until retirement!”
“Be young and shut up!”
“Less valls, more tango” - a play on valse (waltz)
“You do not let us dream, we will not let you sleep!”
"The night is made for kissing, not for work”

In the lead up to the March 9 mobilisation the government announced that the presentation of the bill to the council of state would be delayed from the scheduled date of March 9 until March 24 – this was to provide more time for the draft bill to be amended to take on criticisms from both within PS and concerns from the more moderate unions particularly the CFDT - with three aspects expected to be changed. In the wake of the protests El Khomri announced that she would take on board calls. Prime Minister Valls announced he would meet with student organisations to discuss their concerns.

The bill presented to (and adopted by) the council of ministers on March 24 had undergone considerable changes including:

• Return to a maximum of 12 consecutive weeks of overtime;
• The proposal to extend the maximum number of consecutive weeks of overtime will be subject to a consultation period up until October;
• Proposal to cap unfair dismissal payments has been removed however there has been an indicative scale in place since 2013 for during the conciliation stage of unfair dismissal cases – the government has indicated that it will change this scale by decree (avoiding the need to have the law passed) and extend the scale to apply to awards in cases that move to trial;
• The provision to remove bereavement leave from the Labour Code has been withdrawn but other forms of leave such as carers leave will be determined in the enterprise agreement;
• For a company to implement the spreading of overtime over three years an enterprise level agreement would not be sufficient, instead there would need to be branch agreement in place;
• Increase in the hours for young apprentices was withdrawn (although companies will be able to apply to the labour inspectorate for an increase);
• proposal to allow unilateral introduction of part-time work dropped;
• Proposal to extend "package days" was modified to stop employers being able to unilaterally implementing "package days" – any shift would require agreement with union representatives in the enterprise;
• In the revised bill, the referendum on adopting a contested enterprise agreement is called "consultation". Initially, these "consultations" will not be implemented for determining working hours, however the bill provides for referendum to eventually apply to all sections of the Labour Code including working hours;
• Removal of the entitlement leave for caring for parent or close family with illness or disability (currently set at three months) and would have to be provided in an enterprise agreement.

In addition a new change was included removing the minimum payment for wrongful dismissal – at present if a worker is unfairly dismissed they receive a minimum payment of six months if the company has more than ten employees and they have more than two years of experience – the new proposal is to strip this protection entirely meaning a worker who is wrongfully dismissed could receive nothing.

While MEDEF and other employer groups have been critical of the government for buckling to the movement– the unions leading the mobilisations are clear that they want the bill withdrawn in its entirety.

A limited Movement?
Much of the mainstream English language media coverage of March 9 protests (the later student protests have barely rated a mention) have focused on the fact that this mobilisation was smaller than previous mass union mobilisations in France, (new sentence) most notably the 2010 movement against Francois Fillon’s assault on pensions – which featured seven days of mass strikes and protests between September 7 and October 28 of that year involving more than two million people and ongoing strikes in a number of sectors most notably the oil industry.

While these observations are true, they fail to recognise either the different context in which the current movement is occurring. Much of these conditions act to undermines mobilising capacity of the unions; or that of the big union mobilisations across the last decade only one of these began with truly large union mobilisations, while the others grew into a larger movement from a more modest beginning.

Looking at the experience of the previous campaigns there arethree distinct experiences for the movements of 2006, 2009 and 2010. In 2009 the movement against the austerity policies that sought to make working people pay for the capital’s crisis began with two mobilisations of more than two million people on January 29 and March 19. By May Day protest numbers were down to 1.2 million people, and the movement dissipated after the summer holidays. By comparison the unsuccessful campaign against pension reforms in 2011 began with mobilisations of around 800, 000 in March of that year (this mobilisation was supported by the entire labour movement). While the campaign against the first employment contract (CPE) in early 2006 initially attracted limited union participation in the protests. Instead the movement was driven by hundreds of thousands of university and high school students whose action during February helped to overcome the resistance of a number of union confederations to participating in the movement (largely to regain control of the movement from the insurgent student). Once the unions came on board the protests and strikes grew rapidly. With 1.5 million and 2.71 million on March 18 and 28 respectively and 3.1 million on April 4, resulting in the scrapping of the law on April 10 (another anti-worker law – the equal opportunity law – remained in place but the movement split and dissipated in the wake of the scrapping of the CPE).

The last three big national labour movements in France all occurred under governments of the right. The defeat of the 2011 movement saw a shift away from street mobilisation into hopes that change could be achieved through the ballot box – demonstrated by through the PS victory in the 2012 presidential and national assembly elections and the rise of Front de Gauche’s (an alliance of left parties centred around the PCF and the Parti de Gauche) whose presidential candidate Jean Luc Melechon achieved a vote of 11.10% in the presidential election. Since the 2012 election the PS and its governmental allies have been a disappointment to much of its base and the social forces to its left– not only has the PS failed to reverse the pension changes but has also deepened the liberalisation of the labour market in the interests of capital. These actions have resulted in the electoral rise of the Marine Le Pen’s far-right Front Nationale – and electoral decline of the PS and more importantly the parties to its left.

Unlike the previous mass worker and student mobilisations – the current mobilisations have not been united (with the "reformist" worker and student organisations not supporting the March 9 protest). This division makes it more difficult to build as large protests as in the previous movements. As to bring the members and supporters of the reformist unions (particularly the CFDT - , France’s largest union by membership) into motion, they have to be appealed to over the heads of the leaderships of their unions. However the absence of these forces means that there is a stronger basis for ongoing mobilisation as differences in objectives between the two wings of the union movement (demands for total withdrawal of the bill by the militant class struggle unions vs. calls for consultation and modification of the proposed text of the bill by the reformist forces) are not expressed within the movement itself. This presents a greater opportunity for mobilisations to continue if the legislation is passed, particularly compared to 2011, when the reformist unions who had sought greater consultation by the Fillon government withdrew completely from the movement once the legislation passed – resulting in the almost immediate collapse of the campaign.

An additional factor impacting on the mobilisations against the El Khomri bill is the continuing state of emergency in France (the state of emergency was initiated in the wake of the terror attacks in Paris on November and has since been extended twice). From its inception the state of emergency has stifled the re-emergence of union mobilisations – with strikes cancelled in the week following November declaration of the state of emergency. The state of emergency has also provided a space in which the state has been able to exercise significant levels of repression particularly directed at students- both at student mobilisations and against student organising. The most notable case of repression was the assault by riot police and BAC undercover police on a 15-year-old high school student who had his jaw broken by police - the video of this violence was shared widely and forced the Minister of Education, Najat Vallaud-Belkacem tweet regret about "shocking violence violence against high school student" (the police officer is now facing criminal charges and is expected to go on trial in May). A number of universities have been closed administratively to stop them being used as organising spaces, whilst there have been reports of CRS riot police actively excluding union activists from university general assemblies to stop them from participating in the deliberation and votes on further actions in the campaign.

Despite these difficulties and challenges there are important signs that movement that can challenge and potentially defeat the bill is developing. The most important aspect of this has been both ongoing organisation of students through the holding of general assemblies of students at universities and schools but also the development of joint actions between works and students between the mass days of mobilisations – which was so central to the 2006 campaign against CPE, albeit at lower level than in 2006. Since the lead up to the March 9 protests, student unions have holding general assemblies in which students come together to decide on the course of action at their institution – including whether the institution should be operating. These meetings, particularly at universities involve hundreds of students.

Where to for the movement

Today’s protests are an important test for the campaign. The growth in the size of the protests from March 9 will be important to maintaining momentum and in bringing pressure to bare on the government MPs, particularly those from the PS who are divided over the law - with its right-wing objecting to the concessions to the movement, center supporting the amended bill and left-wing opposing it.

The early signs for a growth in the movement are good with more protests scheduled across both metropolitan France and the overseas territories than on March 9. Equally important a statement by the leadership of Solidaires indicates that their militants are reporting that at the local level at least, it appears likely that members, and possibly some branches, of the CFDT will participate in some of the actions despite that confederation’s leadership not supporting the strikes and protest. However, the experiences of 2006, 2009 and 2010 suggest that the growing may not be enough for the movement to force the defeat of the bill either in parliament or once if it is passed. For the movement to have a strong chance of success it will need to increase in intensity and again in both amongst students and workers there are signs this is possible. Amongst students the general assemblies of students, particularly at university continue to grow – with some meetings involving more than 1000 students on individual campuses. Moreover like in 2006, there are reports of students linking up with striking workers and helping to spread the movement. Amongst workers, in a number of sectors, most notably the SNCF, there are discussions of launching "renewable strikes" where workers meet in the local workplace each day to vote on whether to continue their strike action – with general assemblies of workers being organised for tomorrow (April 1). There has already been a further day of protest called by the "facs in the struggle" – the campuses whose general assemblies have voted to participate in the campaign – for April 5.

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