Although the national railway and Parisian transport strike is going on with ups and downs, for the moment the percentage of strikers is declining among railway, bus and metro workers. Next week the trade unions which are in favor of a total suppression of the government’s reform will try to boost the strike by new demonstrations and days of action. We don’t know what the evolution of the strike will be but the private sector employees keep watching and hoping that alone the ground transportation workers will win. If there is not more class solidarity in action, the strike may be defeated and all public and private sectors’ workers will endure a severe setback for their pensions. This article deals mainly with a weapon the French state has not been obliged to use but could use against the strikers if necessary.
Before 1946, French civil servants had no right to strike, as is still the case in Germany today since, because of a legal fiction according to which the relationship between the German State and its employees is not considered as a relationship between an employer and its employees!
The dominant idea in France before 1946 was also that the contract between the civil servant and the State was not a normal employment contract, since civil servants had to ensure the “continuity of the public service” in favor of all French people. The strike was considered an “unlawful act.” Since 1946 the right to strike has been introduced into the French Constitution, which may seem like a step forward for public sector workers,1 but at the same time it has been constantly limited by the adoption of various regulations, court decisions and laws, as well as by two procedures that considerably limit the right to strike: “designation” and “requisition.”
In France there is therefore no absolute right to strike for all employees, whether they work for the public or private sector. Indeed, civil servants, and even employees of certain strategic private sectors (nuclear power plants, hospitals, transport companies, state radio and televisions, etc.) can be forced to work either because of a “minimum service obligation” or the two mechanisms of designation and requisition.
As far as “minimum service” is concerned: “Certain categories of staff have a right to strike limited by law in order to ensure a “minimum service.” This concerns, for example, hospital staff, air navigation service providers and public service broadcasters. These limitations constitute violations of the right of civil servants to strike. In the regular ground passengers transport sector, in the event of a strike, employees in the categories of staff essential to ensure a certain level of service are required to inform their employer of their intention to participate in the strike no later than 48 hours before their effective participation. In the event of non-compliance with this obligation to make a prior declaration, employees are liable to disciplinary action. Transport companies must draw up a transport plan to guarantee a certain level of service in the event of a strike, with the conclusion of a collective agreement on the predictability of the service. This guaranteed service leads to the possibility of reassigning available staff (i.e., non-striking staff).”2
As for the even more restrictive procedures put in place against the right to strike, they are of two kinds:
Designation (since 1950): The designation implies that the Council of Ministers proves that certain civil servants are essential to the “security of persons and property” or that they are “entrusted with functions of authority ” (executives and managers). The designation procedure is, in theory, controlled by the Council of State3 and is based on the idea that a strike cannot completely interrupt a public service. According to the cgt trade union, designations often lead to abuses and the number of persons designated should, in principle, be limited only to the number of employees necessary to provide a minimum service. Strikers can bring an action against a “designation” before an administrative judge, but of course they do not always win.
“Designations” made by department heads (and not by the government and prefects4 as in the case of requisitions) are sometimes based on lists of employees required to work in the event of a strike, and these employees must be informed by an individual letter. This is how it works in public hospitals, for example.
As for teachers, according to the cnt (an anarcho-syndicalist trade union), if they are designated to monitor an exam, they are required to come to work but are not obliged to control the identity of the students, to check that students don’t copy each other’s work or make phone calls during the exam. For all French trade unions, the designation procedure is not based on any solid law or regulation; it is based only on a decision of the Council of State in 1950 and on the case law respected by the courts since that date. This case law is therefore systematically unfavorable to strikers, who are victims of this designation procedure and of requisition.
If a strike “seriously affects the continuity of the public service or the needs of the population, certain agents may be requisitioned,” according to the law. When he was Minister of the Interior, Nicolas Sarkozy introduced this provision into the Internal Security Code5 passed by Parliament in March 2003, but it had already been practiced largely by the State before him (at least since the law of July 11, 1938), even if it was not used very often after the great miners’ strike of 1963 (see below).
The requisition of strikers can never be requested from the judge or ordered by the employer. The International Labor Organization (ilo) only allows this type of restriction of the right to strike when “the safety of individuals or their health” is at stake, but not for “industrial, educational, traffic or energy issues…” At the same time, this position is hypocritical since the ilo supports the idea of a minimum service!
The government and its prefects can set up the requisition of employees in both the public and private sectors (as far as it has a strategic dimension or is linked to the health sector). The requisition must be justified and may be appealed by the strikers to the administrative court. The objective is not, in principle, to suppress totally the right to strike, but to maintain a “minimum service.” The state, therefore, cannot force all the employees of a company to return to work. However, it is a formidable weapon since strikes are rarely actively supported by 51, let alone 75 percent of employees.
The penalty for an employee who refuses to comply with the requisition may be up to 6 months in prison and a fine of 10,000 euros. Resisting a requisition is therefore taking a significant risk. Requisitions were imposed by the French State during the Cold War and until the great miners’ strike of 1963: requisitioning of coking plant personnel in 1948, gas and electricity workers in 1950, railway workers in 1953, prison administration officials in 1957, sncf employees in 1959, ratp drivers and Air France employees in 1960, national meteorological officers, and sncf staff and hospital interns in 1961.
In 1963, the miners ignored the requisition decided by the government, which temporarily halted this procedure… Here is some useful information provided by comrade Paul Huchon (see also his article about “Law and reality at the sncf”):
The miners’ strike broke out in 1963 (from 1st March to 4th April, i.e., 35 days) during a period when, in power since May 1958 and after the end of the Algerian war in March 1962, the Gaullist regime seemed untouchable, all the more so as from 1959 to 1965, strikes stalled. It began, at the call of the three unions (cgt, cftc and fo), on March 1st, 1963. One of the causes was the abolition of the indexation (introduced in 1954) of miners’ wages on the price index. As a result, the average miner’s wage decreased compared to other categories. As soon as the strike began, the Pompidou government, through the Minister of Labour, Bokanowski, announced that the strike could only last 48 hours and that it would then be requisitioned. The order was issued on March 4, 1963. The 200,000 miners who were on strike resisted this order; the strike lasted 35 days (until April 4, 1963) and the government could not impose its requisition order and agreed to increase wages by 8 percent plus a minimum of 4.5 percent, spread over the period until April 1, 1964, and granted the 4th week of paid holidays. And this was interpreted as a victory. In fact, a minority of strikers wanted to continue and felt cheated by the instructions given by the unions, led by cgt. In several mines in the North (Déchy, Hénin-Beaumont, etc.), the strikers tore up their cgt cards.
In the twenty-first century, the last requisitions took place in the autumn of 2010, during another movement against pension reform. Twelve refineries were blocked. The prefect of the Yvelines region requisitioned Total employees in Gargenville for 6 days because of the risk of a shortage for Roissy airport and emergency services. For the first time, the prefect of the Seine et Marne region requested the requisition of almost all the staff of the Grandpuits refinery in his “department,” but his requisition order was canceled because it violated the right to strike. But his second requisition order was accepted because it “only” concerned 14 strikers. And the prefect of Loire-Atlantique requisitioned 4 employees of a station (more than 15 employees) of a refinery in Donges with 650 employees.
Other prefects have requested requisitions that have been refused by the courts. Indeed, the reference to the need to supply private individuals with domestic fuel oil was not enough; it was necessary to demonstrate that there was a security or public health issue. While it’s positive that in some cases the trade unions have been able to stop prefectoral requisitions, it should be noted that in all court decisions judges have considered that strikes could cause “disturbances to public order and safety,” which is not a good omen for the future of the right to strike:
As soon as an industrial or transport sector has the capacity to blockade the economy, there is a great risk that this requisitioning procedure, which renders the strike ineffective, will be used. Here we go beyond all the decisions condemning strikers deemed responsible for infringing the right to property, or infringing the freedom to work, since it may be held that the exercise of a constitutional right can be an infringement of public order.
Several laws advocate requisitioning:
The Defence Code, rarely applied. The requisition decided by the government in this case must concern all French citizens, not just strikers. And it therefore assumes that France or part of the territory is attacked, or that there is a general mobilization of the population in anticipation of war. That said, as the Sarkozy government noted in 2003, “These provisions were last applied during the 1991 Gulf War in order to requisition persons and material resources from French airlines and shipping companies.”
The Code of Local Authorities (in this case the requisition is taken by the prefect, most often following a government decision, but not always). The mayor of a municipality can also requisition employees who are under his authority.
The measures must be justified by a real urgency, and “proportionate.” For example, during a midwife strike in a private clinic, the prefect was not allowed to request all midwives to work because he had not sought other alternative solutions in the region.
Some civil servants do not have the right to strike: police, military, judges, part of prison staff, national meteorological engineers, customs and security staff,6 etc. It is interesting to note that the famous “special schemes” for civil servants who are at the heart of the Macron-Philippe government’s pension reform now were put in place precisely to prevent civil servants from striking by granting them “advantages” that were not granted to other employees, particularly in terms of career development, bonuses, salary indices and pensions. This did not prevent the employees covered by this strike ban from demonstrating or setting up strikes, including magistrates or policemen, for example.
To be able to strike in the public service, a strike notice must have been given by a union considered to be representative at national level or in the company, or department concerned. In principle, this means that, unlike the private sector, a group of non-union members cannot strike in the public sector. Notice must be given 5 working days before the strike. This rule has perverse effects for the state and its management of public order, since unions have fewer and fewer members and less influence. In the past, this has led to the creation of strike committees where unions were in the minority, or even more preoccupying for trade union bureaucracies and the State, coordinations created outside the unions, for example among train workers in 1986 or nurses in 1988. These coordinations were much more representative than unions and at the same time illegal. Today, these coordinations have eventually turned into permanent unions, but the weakness and lack of representativeness of the unions remains, even among civil servants.
In nursery and elementary schools, strike notices may only be given after prior negotiations between the State and representative teacher unions. Since 2008, there has been a minimum reception service in nursery and elementary schools. Teachers must declare themselves strikers at least 48 hours (including one working day) before the strike. When there are more than 25 percent of teachers on strike, it is up to the municipality and not the State to find alternative solutions.
In the state transport sector, workers may go on strike at any time during the notice period, but only when they take up their duties. Strikers cannot prevent transport from working, which poses problems, for example, in blocking bus depots at this very moment.
Yves Coleman
December 23, 2019
Laws and reality, the example of the sncf
Since the law of August 21, 2007, on “social dialogue and public service continuity in regular ground passenger transport,” “rules have been laid down to promote social dialogue and enable public land transport services to be better organized in the event of a strike without introducing a genuine minimum service obligation.” The law requires employees to give forty-eight hours’ notice that they intend to strike in order to allow local authorities to reorganize the service on the most important lines, substituting non-strikers for strikers.
In fact, the law and laws are only expressions, at a given moment, of the balance of power between employees and bosses. A measure such as the advanced declaration (ad) serves the boss when a movement does not mobilize the majority of the workforce; he can block it, the declaration includes specific names so the hierarchy knows who is going to strike or not. But when a movement is massive and unexpected (without reference to the 1963 miners’ strike), the law collapses before the relation of forces in favor of the strikers (see below).
In the sncf, three categories of personnel are subject to this advance notification system: drivers, controllers and switchers. This does not prevent strikes; it facilitates the boss’s work to counter the effects of the strike by reorganizing the service according to the number of strikers declared. It also created the PoolOp (optional pool) system to counter drivers’ strikes (those most likely to block production because of their strategic role in production relations) and produce visible effects. The PoolOp, created in 2008, includes drivers who benefit from higher wages and additional bonuses when they replace other drivers at short notice, especially when the drivers strike, on all lines of the Île-de-France train network.
The perverse effects of the advanced Declaration System are as follows. In a company working 7 days out of 7, workers have complex schedules including between working days and holidays, or illnesses, or days of rest. If a worker is scheduled to rest on Saturday and Sunday (paid days) and goes on strike on Friday and Monday, Saturday and Sunday will be deducted as strike days. This also applies if the worker had asked for holidays. And this principle also applies to the ratp (metro and tube) but also to primary school teachers. As a result, employees who go on strike are sometimes forced to juggle (if they do not want to lose too much pay) with their presence on strike, which naturally weakens it.
During the 2/5 strike (two days out of five) from April to July 2018, I asked strikers, during a General Assembly, about what happened when one violated the advanced declaration rule. “Can you go on strike without being covered by union notice?”
Formally no, but practically yes, except by mentioning the right of withdrawal. So if we want to strengthen the strike and stop the 2/5 system, we would have to rely on a SUD trade union strike notice. Certainly, because of the advanced declaration, “unpredictability” is limited, but if we go beyond that, what would we risk? There’s a lot of discussion going on all over the place. We would lose three days per day of any unauthorized strike, so 10 days of strike would cost us one month’s salary. Then there are the sanctions. For a young switcher, it has been a written warning. For a cgt delegate in Versailles, the previous time, he received a summons and a warning that could not be amended. Thinking about bypassing an advanced declaration is not on the agenda at the moment. We can discuss it without hostility with our workmates, but their answer remains most of the time the same: “We do what we can with the rules of the game we have.”
In fact, what these rules reveal is that they force strikers to think about illegality during a strike at a premature stage; as everyone knows, illegality can’t be decreed but can only be the product of a long maturation of strikers’ perceptions.
However, recently, drivers, even if they did not clearly declare a strike (they used the “right of withdrawal”),7 have succeeded in effectively paralyzing traffic.
The “wildcat strike” of October 18, 2019
A ter (regional train) between Charleville-Mézières and Reims struck an exceptional road convoy on a level crossing in Saint-Pierre-sur-Vence (Ardennes). The impact caused 11 injuries, including the driver, who had to manage the situation alone: to reassure the 70 passengers but also to avoid other accidents by alerting the other trains that were arriving on the same tracks. The unions contest the principle of “one-agent equipment” (eas), which concerns 75 percent of the ters, where the driver is the only sncf employee on board.
As soon as the news of this accident broke, drivers went on strike by contagion in many regions and blocked passenger traffic during the following weekend. The strike ended on October 21. No demands were expressed. This strike was the expression of the drivers’ frustration since the defeat of 2018. This just proves that a strike cannot be decreed, nor imposed, at least not by the unions (although these drivers were union members of the cgt, sud Rail and even the unsa.
Paul Huchon
December 18, 2019
- In reality, the laws and regulations restricting the right to strike do not only concern civil servants in the strict sense but all “public service employees,” a broader concept that includes workers from private companies carrying out public service missions (e.g., private companies in charge of street cleaning or local transport) or providing commercial or industrial services for the State (ratp, the three divisions—epic—of the former National Railway Company—sncf—the National Museums staff, etc.). In 2016, there were 5.75 million «civil servants» in France in the broad sense of the term: indeed, civil servants, in the strict sense of the term, have a status but no contract; while other administrative staff have a all variety of contracts. The civil service is divided into three categories: the state civil service (2.35 million employees), the territorial civil service (1.87 million employees) and the hospital civil service (1.53 million employees), themselves divided into permanent civil servants, non-permanent civil servants under public law and non-permanent civil servants under private law. It is among the non-permanent civil servants (17 percent of those working for the three civil services in one capacity or another, i.e., almost one million agents) that we find a multitude of precarious jobs: temporary public employees, supporting staff, contract staff, substitute staff and even temporary agency workers.↩︎
- CGT, “Grève dans le secteur public : modalités et droits,” January 24, 2019.↩︎
- “In France, the Council of State (Conseil d’État) is a body of the French national government that acts both as legal advisor of the executive branch and as the supreme court for administrative justice” (Wikipedia). It includes 231 members and is obviously an instrument of law and order.↩︎
- “A prefect (préfet) in France is the state’s representative in a department or region. Sub-prefects (sous-préfets) are responsible for the subdivisions of departments, arrondissements. Office of a prefect is known as a prefecture and that of a sub-prefect as a subprefecture” (Wikipedia). France itself is divided in 95 “départements” (administrative regions created by Napoleon 1st) each one being managed by a prefect nominated by the government.↩︎
- As noted by Patrick Le Moal in 2010, “Let’s recall that this law created a series of new offences and new sanctions concerning prostitution, begging, travellers, squatters, gatherings in building lobbies, threats, hooliganism, homophobia or arms trading. It also granted new powers to the police forces such as the enlargement of certain files, changes in the conditions of police custody, etc.” And Le Moal concludes: “Obviously, at that time, the government used the law against petty delinquency to sneak a major attack on the right to strike” because “in what other cases than a strike can “the requisitioning of gas stations and requisitioning of certain businesses” be used? Patrick Le Moal, “Réquisitions: premières remarques après les ordonnances de ces dernières semaines,” Chronique Ouvrière, November 2, 2010.↩︎
- Until 1984, air traffic controllers did not have the right to strike, but since then they have been able to stop working but must provide a minimum service.↩︎
- Since 2008, any employee can stop work in the event of “serious and imminent” danger, or if he notices “any defect in the protection systems.” As long as the danger has not been ruled out, the employer cannot force an employee to return to work. Unlike a strike, the right to opt out does not prevent the worker from receiving his/her salary, and there is no need to give a previous notice.
An employee who wishes to exercise his right of withdrawal must inform his superiors. Then “the employer immediately carries out an investigation with the representative of the Social and Economic Committee (NDLR: a trade unionist) who has informed him of the danger and takes the necessary measures to remedy it,” stresses the Labour Code. “In the absence of agreement between the employer and the Social and Economic Committee on the measures to be taken, the employer shall refer the matter to the labour inspector,” the law continues.↩︎