The Committee notes the observations of the General Confederation of Labour–Force ouvrière (CGT–FO) on the application of the Convention, in which it regrets the lack of reliable statistical data on the nature and extent of the exemptions from Sunday rest that are granted by the labour inspectorate and stresses that the number of such exemptions has substantially increased between 2006 and 2007.
France
Weekly Rest (Industry) Convention, 1921 (No. 14) (ratification: 1926)
Articles 4 and 5 of the Convention. Total or partial exceptions. The
Committee notes the observations of the General Confederation of
Labour–Force ouvrière (CGT–FO) on the application of the Convention, in
which it regrets the lack of reliable statistical data on the nature and
extent of the exemptions from Sunday rest that are granted by the labour
inspectorate and stresses that the number of such exemptions has
substantially increased between 2006 and 2007. On a more general note, the
CGT–FO points out that the absence of precise data on the results of labour
inspection supervisory activities does not allow for an assessment of the
application of the Convention. The Committee requests the Government to
provide its comments in response to the observations of the CGT–FO, and to
communicate up to date statistical information on the number of enterprises
and approximate number of workers in the industry concerned by such
exceptions, the types and number of exemptions granted per year, as well as
extracts from reports of the labour inspection services showing the number
of infringements observed and sanctions imposed, copies of relevant
collective agreements, etc.
The Committee is raising other matters in a request addressed directly to
the Government.
Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106)
(ratification: 1971)
Article 7 of the Convention. Permanent exemptions – Sunday work. The
Committee notes the comments of the General Confederation of Labour–Force
ouvrière (CGT–FO) received on 4 June, 20 August and 7 September 2009
concerning the application of the Convention.
The CGT–FO denounces the progressive extension of exemptions to weekly rest
on Sunday, particularly in the commercial sector, and refers, on the one
hand, to their incompatibility with the provisions of the Convention and,
on the other, to the negative impact on workers by challenging a principle
which has contributed to the division between private and working life
since 1906. It observes that successive modifications of the Sunday rest
scheme are opening the way to the generalization of Sunday work and the
avoidance of consultations with workers‟ organizations on the subject.
In its three communications, the CGT–FO emphasizes the non-compliance of
the measures adopted successively in 2008 and 2009 with the Convention. It
indicates that the previous extensions of exemptions from Sunday rest were
reinforced by Act No. 2008-3 of 3 January 2008 and by the subsequent
recodification of the Labour Code. The first reform added “retail furniture
stores” to the list of establishments authorized to introduce exemptions
from Sunday rest. The recodification resulted in an extension of the scope
of exemptions through the introduction of the new concept of “public needs”
and by providing that the list of establishments allowed to introduce
exemptions from the Sunday rest shall be determined by regulations. Section
L.3132-12 of the Labour Code provides in this respect that “certain
establishments the operation or opening of which is rendered necessary by
production constraints, the activities or needs of the public, shall be
entitled to introduce exemptions to the Sunday rest rule and shall
attribute rest days on a Sunday on a rota basis. A decree issued by the
Council of State shall determine the categories of establishments
concerned”.
As regards the second reform, Act No. 2009-974, adopted by Parliament on 22
July 2009, modified the scheme of exemptions from Sunday rest in tourist
towns and areas (section L.3132-25) and replaced the previous restrictions
relating to the areas concerned, the issuance of permits and the period
concerned by a scheme under which the exemption is automatically acquired –
permanent and generalized – thereby, de facto, resulting in the
generalization of Sunday work in towns and areas classified as touristic by
decision of the Prefect, at the proposal of the mayors concerned. The same
trend for the extension of exemptions concerns retail outlets in towns with
over 1 million inhabitants, through the introduction of the authorization
of automatic opening on Sundays for a period of five years in “areas of
exceptional consumption” (PUCE) characterized “by customary Sunday
consumption, the significance of the volume of customers concerned and
their distance from the said area”.
The CGT–FO considers that these exemptions, which only retain the voluntary
nature of Sunday work and the compulsory compensatory benefits in the case
of PUCE, are clearly far removed from those envisaged in the Convention and
are based on criteria that are difficult to verify in practice, such as
“the significance of the volume of customers concerned” and consumption
“needs”. It underlines the weakness of statistical data to assess the
impact of these exemptions. It further emphasizes the importance that is
attached to the interpretation of the Convention to prevent trends that are
contrary to its spirit. In its reply, received on 4 September 2009, the
Government recalls that the labour legislation fully complies with the
requirement of Article 6(3) of the Convention by stipulating that, in the
employees‟ interest, the weekly rest is granted on Sunday (section L.3132-3
of the Labour Code) and indicates that it even exceeds the minimum standard
prescribed by the Convention by providing for a weekly rest of 35 hours
(section L.3132-2 of the Labour Code). Concerning the specific arguments
put forward by the CGT–FO, the Government maintains that:
(i) the re-codification of the text of the Labour Code did not aim at
extending the permanent exemptions to the Sunday rest rule but simply to
restate the criteria which had already been used for such exemptions and
which are the constraints of the production and the needs of the public;
(ii) the notion of needs of the public is not contrary to the provisions of
Article 7 of the Convention since the “nature of the service performed by
the establishment”, referred to in this Article, conveys the same idea.
Besides, the Convention requires regard to be paid to all proper social and
economic considerations, which may include the evolution of the needs of
the public;
(iii) Act No. 2008-3 of 3 January 2008 aims at promoting competition in the
consumer‟s interest. It was noted that due to changes in lifestyle,
especially in big cities, there is a high demand for visiting retail
furniture stores on weekends, hence the necessity to authorize these
establishments to open on Sundays;
(iv) no consultations were held prior to introducing the exemption with
respect to retail furniture stores for reasons connected with the
legislative process but also because the sector concerned is covered by a
collective agreement that provides for specific compensations in case of
Sunday work;
(v) Act No. 2009-974 of 10 August 2009 was adopted following the
recommendations of the Economic, Social and Environmental Council contained
in two reports prepared in 2007. As these reports concluded, Sunday no
longer constitutes only a day of collective rest but also a moment of
cultural enjoyment or leisure and suitable for shopping either as a family
or individually;
(vi) the new exemption concerning the tourist towns and areas builds on an
existing exemption simply extending its scope with a view to promoting
tourism. It will affect, at the maximum, an estimated 150,000 persons to be
compared with 6.5 million persons who are habitually or occasionally
required to work on Sundays;
(vii) the establishment of PUCE, or areas of exceptional consumption in
urban areas of at least 1 million inhabitants, is meant to respond to
existing practices of Sunday consumption. It will be subject to the
authorization of the Prefect upon the prior request of the municipal
council and on condition that a collective agreement fixes the
compensations to be granted to the employees deprived of their Sunday rest.
Approximately 20 areas are expected to be established affecting 15,000
persons. Authorizations are limited to five years which demonstrates the
exceptional character of the new measures while a six-member parliamentary
committee will present a report within a year as from the publication of
the new legislation in the Official Gazette.
The Committee notes the observations of the CGT–FO and the Government‟s
reply which relate to legislative developments impacting on the application
of Articles 6(3), 7(1) and (4), of the Convention. The Committee wishes to
recall at the outset that for the determination of weekly rest the
Convention is articulated around three basic principles, i.e. continuity (a
period of weekly rest comprising at least 24 consecutive hours), regularity
(weekly rest to be enjoyed in every period of seven days), and uniformity
(weekly rest to be granted, wherever possible, simultaneously to all the
persons concerned of an establishment and to coincide, wherever possible,
with the traditional day of rest). These principles are reflected in
sections of the Labour Code and there seems to be little disagreement
between the CGT–FO and the Government that the principle of Sunday rest is
a time-sanctioned and firmly grounded principle of the French labour
legislation. It is commonly accepted that a certain flexibility is
indispensable in applying this principle in view of the fact that in some
cases there is an imperative need to maintain certain units of production
operating around the clock, and in some others there is a manifest public
interest in receiving certain services on Sunday. The Committee is
therefore of the view that the different questions raised in the
communications of the CGT–FO ultimately concern the exact scope and
conditions of application of the permanent exemptions permitted under
Article 7 of the Convention.
The Committee recalls that Article 7 permits special weekly rest schemes,
including the granting of weekly rest on another weekday on a rotation
basis when the nature of work, the nature of the service performed by the
establishment, the size of the population to be served, or the number of
persons employed is such that the normal weekly rest scheme provided for in
Article 6 cannot be applied. In this connection, the Committee refers to
paragraphs 110–123 of the 1964 General Survey on weekly rest in which it
concluded that “an examination of the establishments covered by special
schemes shows that they are governed by three main criteria, i.e. the need
to cater for certain everyday consumer needs; the need to keep certain
establishments operating; and the need to make special weekly rest
arrangements for particular places or districts”. More concretely, the
Committee referred to: (i) first, establishments engaged in work which
cannot be interrupted owing to the nature of the needs for which they cater
or the harm which any stoppage would cause to the public interest,
including industries, businesses and services indispensable to the daily
maintenance of health, food supplies, safety and essential consumer needs
generally, such as hospitals and similar establishments, hotels,
restaurants, certain wholesale and retail commercial establishments,
fire-fighting services, newspaper, information and entertainment
establishments, public utilities (water, gas and electricity) and
transport; (ii) secondly, industries which for technical reasons must
operate continuously if they are to maintain their efficiency, including
manufacture of foodstuffs for immediate consumption, occupations in which
any interruption of the work would entail the loss or deterioration of the
raw materials, or industries using certain specialized techniques (ovens,
blast furnaces, gas works, etc.); and (iii) thirdly, establishments which
operate only for part of the year or which depend on natural energy or
other variable circumstances (e.g. establishments using water or wind as
their sole motive power, occupations which are carried on in the open air
and in which work may be held up by bad weather), including certain
establishments in bathing and tourist resorts or watering places.
More specifically, in so far as retailing is concerned, the Committee noted
that this is one of the branches of employment most frequently subjected to
special weekly rest schemes, and that some countries specified the items
which may be sold on the compulsory weekly rest day. It also noted that
this had the advantage of making it clear that exceptions to the normal
weekly rest schemes were warranted only when they met a very definite need
(General Survey of 1964 on weekly rest, paragraph 113). More recently, in
its 1984 General Survey on working time, the Committee indicated that in
certain sectors such as commerce there is a trend which could lead to the
establishment of special schemes that do not necessarily correspond to the
standards prescribed by the Convention (paragraph 166).
The Committee recalls, in this regard, that it has raised similar questions
in the direct requests it addressed in 2005 and 2008 concerning the
application of the Convention in New Caledonia with respect to exemption of
hardware and do-it-yourself stores. In these comments, the Committee also
referred to relevant jurisprudence, including 19 decisions of the
Administrative Court of Paris rendered in November 1993 and a decision of
the Conseil d’Etat of July 1983, which ruled that do-it-yourself stores did
not meet the conditions for granting an exception to the Sunday rest rule.
In this connection, the Committee notes the existence of recent court
decisions ordering on pain of fine retai retail stores, in particular
hardware and do-it-yourself stores, to remain closed on Sundays.
The Committee understands that the question of Sunday work has been the
subject of serious controversy in France which has led the Parliament to
defer on several occasions the debate on the topic prior to the adoption of
Act No. 2009-974. It also understands that this debate is stirred
principally by the evolution in people‟s preferences and patterns of
consumption. The Committee further notes the regret expressed by the CGT–FO
concerning the lack of statistical data on these situations and on the
probable impact of the reforms. There are also significant divergencies
between the fears that it expresses concerning the generalization of Sunday
work and the Government‟s estimates, which indicate that some 15,000
persons are concerned in tourist areas, compared to 6.5 million persons who
are normally affected by Sunday work. An accurate assessment of the
situation is in this context a prerequisite to evaluating the impact of the
legislative measures. The Committee would therefore appreciate it if the
Government and the social partners would provide supplementary documented
information on the following: the results of any opinion surveys carried
out among the workers concerned; the measures taken to ensure the voluntary
character of Sunday work; the compensatory measures taken in favour of
employees working on Sundays in application of the new legislative
provisions, including copies of relevant collective agreements; any
developments concerning the delimitation of tourist areas, the
determination of tourist towns and the establishment of PUCE; copy of
official studies that may have been conducted following the legislative
developments of 2008 and 2009 or new reports that may have been published
by the Economic, Social and Environmental Council on this matter; copy of
the report which will be prepared by the parliamentary committee referred
to in Act No. 2009-974.
The Committee would also be grateful to the Government for replying to the
following additional questions: (i) did Act No. 2009-974 reflect the
proposals contained in the 2007 report of the Economic, Social and
Environmental Council? (ii) were any consultations held with the social
partners during the period from 2007 when the report was prepared and July
2009 when the Act was adopted, and if so, what was the nature and outcome
of these consultations? (iii) what are the consultation procedures used
when legislative measures touch on labour questions? (iv) what was the
special procedure used by the Government in this case and why was it
chosen?
The Committee is raising other points in a request addressed directly to
the Government.
[The Government is asked to reply in detail to the present comments in
2010.]