The flexicurity à la française, the main ambition of the reform of the labour law




on 21 July 2017 – Marion MORET – Right

© A. P. – Antoine Lyon-Caen, specialist of social law.

According to Antoine Lyon-Caen, a prominent professor of social security law, the labour law reform initiated by the new President of the Republic and his Government would introduce a great degree of flexibility in our current law : the “flex-security”.

The JUREM, the committee of jurists In March ! organize this summer cafés-debates in Paris. The opportunity to meet the beautiful legal world (lawyers, corporate lawyers, academics, students) all of which are affiliated to the political party of the President of the Republic, to discuss matters related to the law. On 4 July, the lawyers had invited Antoine Lyon-Caen, distinguished professor of social law at the university Paris Ouest Nanterre La Défense, and between the other lawyer in the State Council and the Court of cassation or even expert for the european Commission. The purpose of this is to discuss around a glass at the brewery the banks of the Seine on the titanic labour law reform initiated by Emmanuel Macron and his Government since 29 June.

“I’ll try not to caress you in the direction of the hair, but rather to provoke your reactions, your thoughts, on this very important project,” said by way of introduction, the specialist of social law, in front of an audience of lawyers Running ! attentive and silent. The professor has studied carefully the draft of the enabling act (filed June 29 at 1440 in the national Assembly) and has removed three principal ambitions.

Create a “flexicurity” to the French

The ambition of the most interesting of the project is to create a “flexi-security” to the French. That is what it is ? It is the idea of making people management a lot more flexible, while giving rise to new security for the workers. The teacher noticed that the text had brought in ” huge margins of flexibility “.

Flexibility in access to work. “We are witnessing the return of the project contract “, a contract which has existed since 2004, mainly in the field of building. This type of contract allows you to hire an employee for the time of a mission (start to export a product, build a cooperation with a company), and then to separate from it without the license, therefore without payment of premium. It is a form of contract-in hybrid, mid-way between the CDI and the CDD. This is not a CDI because its duration is determined. But this is not a CDD as its duration is not determined in advance : it ends when the mission is finished, two months, six months or two years after its conclusion.

Favoured by the employers, held in horror by the unionists, this form of contract can be ” very attractive, if it is done well “, according to professor of social law.

Another provision in the bill would facilitate access to work : the one who is planning to leave the care of the collective agreements to determine new grounds for the creation of xed-term contracts. It does however raise a big issue of constitutionality ! It is the act that provides the grounds for conclusion of fixed-term contracts (articles L1242-2 and -3 of the labour code) and not the collective agreement, which is lower in the hierarchy of norms. A collective agreement could not, therefore, derogate from the law, under penalty to be unconstitutional. This provision should therefore be clarified by the new Government.

Flexibility in the management of work contracts. According to the specialist, the contract of individual work would lose some of the resistance to the collective agreement. The employee would no longer oppose a clause to the individual of his or her contract (on the terms and conditions of exercise or working time, for example) to a collective agreement under the penalty of being dismissed for personal reasons.

Flexibility at the exit of the contract of employment. The dismissal would be greatly facilitated. This would be the end of the case-law Rogier of 29 November 1990, which was established in French law that an employer who dismisses his employee without giving reasons sufficiently precise (in the present case, it was ” guilt extremely serious “) is equivalent to dismissal without cause real and serious, that opens right to compensation for the benefit of the employee. It’s iconic and very protective, which would come to an end. The employer may dismiss an employee without indicating the grounds without the risk of having to compensate them.

The greater flexibility introduced in the labour law for this reform is not the crux of the problem, according to the professor. It is the fact that there is no security in place on the side of the workers. “That is why it is very difficult to defend this project, aside from saying “but if, it will come !”, even if it doesn’t seem to be on the programme of reforms this summer “.

The lawyers were a lot to learn listening to the teacher of social law.

The other two ambitions of the bill :

  • Release the work

According to Antoine Lyon-Caen, the watchword of the reform of the labour law as presented by Emmanuel Macron would be to ” liberate work “. A principle which has its roots in the revolution of 1848, which developed the idea that ” each should become owner of his work “. This implies a strong reflection on equal opportunities in the workplace in order to reveal the “capabilities” of each. A term that means implementing concrete resources (material, intellectual, institutional) of employees and not simply to enact rights and freedoms-formal. In other words, this liberalization should allow each one to have concrete ways to build his or her own professional path, and not to suffer. This would bring the classic work (wages) self-employment. In this respect, Antoine Lyon-Caen think that the provision in the bill to extend the unemployment allowance to the contractor which is experiencing a period of cessation of activity, and not only to an employee who has lost his or her job is one way to bring these two forms of work.

“If one follows this idea, we should start by helping the “small” entrepreneurs. Unfortunately, when reading the draft [of the law], it is not about that, ” said sorry to the teacher. The project only refers to “the large company” at times, but never cites the contractor. “This is not the ambition of this project. This may be one of the following ? “The specialist is still optimistic.

  • To bring into being a new social model

The idea of a “new social model” is repeated several times in the text. The professor believes that we have “fantasies complete” on what is and what has been the law of the work. “This law is not fixed, it has grown and it has already changed a lot since its birth. “The idea of the reform is therefore rather an announcement effect, because it is constantly changing.

However, if new model there is, it would be inspired by the law of the German work : the co-management system. This is to involve employees in the life of the company, the same rank as the decision-makers. A few sentences of the bill suggest that the bill is going in this direction : “to associate better with workers in company decision-making “, ” increase the presence of workers in the supervisory bodies of the companies “. Antoine Lyon-Caen thinks that ” perhaps it is this that is sought by the French society through the movement In motion ! : to ensure that everyone is better armed individually, protected more by his professional order, while reducing the protections that they once held the law “.

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