Forty-eight hours before the SNCF controllers’ strike planned for this weekend, Prime Minister Gabriel Attal contrasted the right to strike with a duty to work on Wednesday February 14. ” The French (…) know that striking is a right, but I believe they also know that working is a duty”, said the Prime Minister, when asked about the movement which should disrupt train traffic in the middle of the school holiday weekend.
The two principles that Mr. Attal seems to oppose are taken from Preamble to the 1946 Constitution. Paragraph 5 states that “Everyone has the duty to work and the right to obtain employment” while the seventh specifies that “the right to strike is exercised within the framework of the laws which regulate it”. What is the legal significance of these two principles? Are they really opposable? For Bérénice Bauduin, lecturer in social law at the University of Paris-I-Panthéon-Sorbonne, it would be “hypocrite” to thus compare two principles which do not have the same value in constitutional jurisprudence, where the “duty to work” not listed.
Are we all subject to a “duty to work”?
The duty to work is a very broad notion; we can put whatever we want into it because it has not really been legally defined. Above all, it has never been the subject of a jurisprudential decision by the Constitutional Council. That is to say that its members have never had to decide on a law which would come into conflict with this principle. The very idea of a duty to work is embarrassing because, under French law, you cannot force someone to work. We cannot prevent an employee from resigning, it is a protected right. Even the principle of requisition, which can apply in certain circumstances, is very regulated. It also goes against certain international principles, such as forced labor which is prohibited by the international labor organization.
If the “duty to work” may have been opposed to the right to strike in certain political speeches, from a legal point of view, the Constitutional Council refuses to take up notions which are too vague, and for which it is not able to determine what the will of the settlor was. The duty to work was perhaps thought of in 1946 as a moral duty. But it is difficult to establish that the will of the constituents was to make it an obligation imposed on citizens.
A principle which appears in the Preamble to the Constitution can therefore not have real legal value?
The Preamble of the 1946 Constitution, from which the principle of ” strike right “ like that of “duty to work” was written under the IVe Republic at the end of the Second World War. At the time, it was a mainly symbolic text which aimed to guarantee a Republic with more social rights, to complement the Declaration of Human Rights which focused rather on civil rights, and to avoid a new political exploitation of poverty, like that which had brought Nazism to power. But the text was not intended by its drafters to have binding legal value.
It is only since a decision of July 1971 that the Constitutional Council recognized itself as competent to monitor the conformity of laws with the fundamental rights and freedoms guaranteed by the Constitution. However, not all the principles that appear in the 1946 preamble have been activated in the same way in jurisprudence.
In this case, can we oppose the right to strike and the duty to work, as Gabriel Attal seems to do?
We may be tempted to oppose them in certain speeches, but this opposition is of the order of sophism. On the right to strike, the Constitutional Council has on several occasions been called upon to rule on laws which aimed to regulate this right, such as the establishment of compulsory notice, or the law relating to the continuity of service audience. To limit the right to strike, a proportionate objective must be justified, with the same constitutional value.
This is not the case for the duty to work. Even in a decision like that of December 2022 on the application of the unemployment insurance lawthe Constitutional Council does not rely on the “duty to work” but rather invokes a “public interest objective” or an incentive for workers to return to employment.
There is therefore something quite hypocritical in using, as if they had the same value, the right to strike, protected as such by decisions of the Constitutional Council, and the duty to work which, legally, is non-existent. . Furthermore, the strike is not a disregard of the duty to work. We do not go on strike with the aim of not working, but rather to obtain the satisfaction of professional demands.