Reform of the Labour Code : what perspectives in companies after the ordinances ? (2/2)

The next step is the reinforcement of the actions undertaken to facilitate the professionalization and protection of staff representatives.

Anticipate the discrimination risk

Discrimination is unacceptable, of course, but so is the abuse of protection. The subject will gain momentum with the professionalization and expansion of the responsibilities of staff representatives. Management will have to exercise the utmost rigour in terms of personnel management. Indeed, the burden of proof is reversed in the area of discrimination, and a practice is developing which consists in going before the judge based solely on the fact that there is a difference between the pay of a staff representative and the mathematical average of the pay of other employees in the same job, or almost, recruited at the same time, or almost, without any other evidence that might suggest the existence of discrimination. This sophism, which defies the laws of statistics, especially for small populations, is a persuasive one for magistrates, and is very difficult to combat. The employer must identify when the discrepancy occurred and provide facts to explain that it arises from a difference of behaviour or skills in the exercise of the professional mission.

This presupposes that the chain of command and/or the HR function has ensured the traceability of all its decisions regarding remuneration, classification, training, transfers, and professional mobility policy. This traceability is essential for all employees because, by definition, no-one can foresee who is going to have a representation mandate. Today, human resources departments need to come up with a relevant traceability mechanism. Within the framework of a collaborative social dialogue, this mechanism could be designed in a concerted manner, or even form part of an agreement on social dialogue.

To close this subject of the nature of social relations, let us remember that the political power is realistic, and the impact study specifies : “Moreover, legislative modifications will not suffice, by themselves, to modify decades of practice. This movement will have to be supported by a host of non-regulatory initiatives that will establish a lasting culture of negotiation and consultation in the country, particularly in terms of training in mediation techniques for bosses and managers as well as staff representatives”. A first step that could be taken by company managers would be to embrace Article L 2212-1 of the Labour Code, a provision created by the EL KHOMRI law, and propose that they and their partners in the company receive joint training aimed at improving their social dialogue. Attempts of this kind of the companies that we assist have had a mixed reception, which is a first indicator of the maturity of their social relations, and of the partners in place.

Vigilance regarding psychosocial risks

In addition to organising the power to create standards granted to both sides of industry, the reform focuses on very specific topics, some of which call for particular vigilance. The first point of vigilance concerns psychosocial risks. The impact study addresses the matter in an incidental manner in its Article 2 entitled “Provisions That Strengthen Social Dialogue”. Article 1.2.7., which exhumes the right of expression of employees contemplated in the Auroux laws, notes that, “The national inter-trade agreement of 17 March 1975 on the improvement of working conditions specifies that the organisation of work is the sole responsibility of the employer, but that the possibility given to employees to express themselves about their work, the quality of the goods and services they produce, the conditions of work and the efficiency of work enhances their perception of the quality of working life and the meaning given to work”. The impact study also points out that this expression is an important factor in the control of psychosocial risk, and concludes that the legislator must revisit employees’ right of expression by taking into account, in particular, the use of digital tools. It should be recalled that 18 articles of the Labour Code currently deal with this right of expression on the part of employees that few companies have formalised despite the sanction of one year’s imprisonment and a fine of 3,750 euros.

The direct link between the right of expression and psychosocial risks gives it a new dimension. If a psychosocial risk is realised, the company will be held responsible if it has not kept records ensuring the traceability of the organisation of the right of expression and may be penalised for having committed an inexcusable fault for failing to put in place this mechanism that would have alerted it to the dysfunction that caused the injury suffered by the employee. Management should therefore no longer see the right of expression as a secondary matter, but rather as an element of the psychosocial risk prevention policy, with the necessary traceability.

Arduousness account

Another subject addressed by the reform is likely to result in the liability of the company and its managers for failing to fulfil the “specific result obligation” in relation to the physical and mental health of employees. In his letter of 8 July 2017 to trade unions and employers, the Prime Minister announces a review of the compte de pénibilité or “arduousness account”. It is clear that good intentions come up against implementation difficulties, particularly in small and medium-sized enterprises. The points system that currently applies has the advantage of perfectly satisfying a rationale of prevention. However, it is undeniably mired by a level of administrative complexity that makes it very difficult to apply. Four criteria no longer come within the scope of the points system: the handling of heavy loads, uncomfortable postures, mechanical vibrations and chemical risks. Recognition will now take place on an a posteriori basis, by means of a medical examination. There are real problems for companies with this mechanism. Indeed, the purpose of the medical examination is to establish that the health of the employees in question has worsened owing to the arduousness of their job, so that they can receive the corresponding compensation. This examination attests that the company has not fulfilled its specific-result obligation regarding the physical and mental health of its employees. This change in the arduousness account certainly alleviates the administrative burden, but it creates a trap for companies that do not implement a prevention policy for these four risk factors incorporating the relevant individual traceability. In accordance with the requirements of the Court of Cassation, companies may be exonerated from liability if they are able to demonstrate that they have taken all relevant preventive measures (Cass. soc., 25 Nov. 2015, No. 14-24.444 and Cass. soc., 1 June 2016, No. 14-19,702).

The reform addresses many other topics that have been written about at length and will be commented upon again. In conclusion, we will choose the provisions on employment flexibility. Concerning the regulations on fixed-term contracts and temporary work, the aim is to open up bargaining opportunities, at branch level, about the reasons for the use of these contracts, their duration and their succession with regard to the same job or the same employee. The branches are also asked to decide on the use of permanent contracts in the construction industry which can be extended, as specified in the impact study, to “any operation of which the purpose is precisely defined, the beginning and end are clearly identified, but of which the duration and termination are uncertain”.

These measures can be compared with the new conditions applicable to redundancies for economic reasons, the ceiling for severance payments and, to a lesser extent, to secondment, which aim to make the labour market more fluid. They are part of the first proposition on flexibility and security. The reform does not address any aspect of security. The topic may deserve special attention depending on the direction that is taken. Indeed, the degree of flexibility can be adjusted in each branch. This raises the question of whether solidarity to ensure security during inter-contracts should be national or adapted to the branch. This would lead those branches with the least relevant employment policy to create a fund to supplement national solidarity.

This would be a new power granted to the branches, which is not unlike that of the corporations prohibited by the decree of 23 April 1791 which aimed to promote the freedom of profession and trade. This somewhat provocative observation reminds us that any reform can lead to opposite paths, depending on the capacity of the actors to develop real collaborative relations. The drafters of the penultimate version of the EL KHOMRI Law emphasised that social relations had to be conducted in a spirit of fairness. The version that was adopted was more moderate.

Let us hope that the future texts rehabilitate this legal concept, which is barely mentioned in the impact study, and which is the foundation of any collaborative relationship and vital to the success of the ongoing reforms.