The Constitutional Council has just stabbed the Macron law of August 2015, which had modified parts of the labor code. In a decision made Tuesday, September 14, the institution chaired by Laurent Fabius ruled against the Constitution a provision on the appointment of union defenders – those people who accompany employees in conflict with their employer before the labor tribunal. Until now, they could only be nominated by the main unions, which excluded other organizations with a smaller audience. Such a mechanism ignores “The principle of equality before the law”, for the Constitutional Council.
The case follows on from a priority question of constitutionality (QPC) posed by the National Confederation of Workers-Solidarity Workers (CNT-SO). This trade union organization has, in fact, contested one of the measures included in the law of August 6, 2015 for growth, activity and equal economic opportunities. Completed by an ordinance of December 2017, it provides that the services of the Ministry of Labor draw up the list of union defenders who have been proposed to them by employee organizations. This possibility of communicating names to the administration is only granted to representative unions at national level. “Interprofessional”, “multiprofessional” Where “In at least one branch” – that is to say to those who obtained at least 8% of the votes in the elections in the companies, at the national or sectoral level.
Unjustified difference in treatment
The CNT-SO, which is below the 8% threshold and is therefore not representative, sees in this rule “Discrimination and an attack on freedom of association”, according to the formula of its national secretary, Etienne Deschamps. The legislation in force ” has no sense “, adds Xavier Courteille, one of the lawyers of the CNT-SO: he argues that this organization has many seasoned activists, especially in the cleaning sector, who are quite able to fulfill the mission of union defender .
So many arguments which seem to have convinced the Constitutional Council. In its decision, it notes that the criterion of representativeness “Does not reflect the capacity of an organization (…) to designate suitable candidates for [la] function “ as a union defender. Therefore, the “Difference in treatment” between representative and non-representative confederations “Is not justified by a reason of general interest” and is “Unrelated to the object of the law”. That is why it must be struck down, in the eyes of the council.
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