The law creates the conditions for a profound modification of the social relations model. The stakes for our economy are very high.
Antagonism and power relationships are both elements of the trade-union movement born of the desire to improve the situation of workers. The favourability principle guaranteed that the power relationships within the company could not work to the detriment of employees. This request/resistance situation contributed to a reciprocal imputing of motives: staff representatives do not worry about economic realities and the employer cites economic reasons in order to curb claims.
In 2004, the texts reinforced a change in the social relations undertaken in… 1982. The principle was established whereby a company-level agreement may deviate significantly from national agreements, in a manner that is less favourable to employees and, as regards the modification of working time, the law of 20 August 2008 gave the company agreement priority over the national agreement. Furthermore, the law of 14 June 2014 made it possible to depart from the fundamentals of the employment contract for a period of three years (five since the Macron Law), within the framework of company-level agreements aimed at keeping workers in employment.
Consequently, it is now possible, by agreement at the level of the company, to determine the essential terms of the collective agreements of employees, often in a way that is less favourable to employees than the law or higher-level agreements, and even the employment contract. The burden of responsibility which is thus devolved to staff representatives is a very heavy one. They cannot escape this burden. Indeed, not to use this contractual freedom is in itself a position that should be a conscious, well thought-out decision, because negotiating partners are able to anticipate economic difficulties, to create the conditions facilitating the success of a strategy, to be reactive to the point of avoiding job losses in the event of sudden crises of the market, or in relation to the cost of energy or raw materials.
The drafters of the El Khomri law insisted that good faith was a necessary component of social relations.
A human resources manager recently confided to me at the end of a negotiation on wages that the trade-union leader of his industrial company, traditionally antagonistic, had whispered to him that he no longer felt the need to present claims that were much more ambitious than the expectations of the personnel. Perhaps this is the sign of a move towards more sincere industrial negotiations. In the same vein, the drafters of the El Khomri law insisted that good faith was a necessary component of social relations. The temptation, for example, on the pretext of the waves of migration which await us, to obtain reductions in wage costs would be sanctioned in the long term by a weakening of the social fabric and, probably, by a return to the widespread use of power relationships.
On the other hand, the premature threat of walkouts can constitute a form of blackmail and breach the requirement of fairness and good faith contained in the texts. Another position would be to develop the professionalization of staff representatives, so that they can negotiate each measure with full knowledge of the stakes. In this way, social relations would be both meaningful and coherent with the commitment expected by employees, which is not compatible with an antagonistic relationship. By supporting the right adaptability of our companies, they would contribute to their profitability. Certain companies have taken the step, successfully.
C’est à vous n°44, avril 2017