Friday 31. October 2014

Opinions:

Taylor Lydia
28.11 2011 - graduate student at New York University
What a great campaign! I currently live in the United States where everything is open on Sundays and opening times of 24 hours are not unusual. While this is convenient for people who want to shop, I feel bad for the sales associates who have to work on Sundays or late at night. Life is stressful...
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Content:

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.]

 

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