Publication of the contents of five Macron ordonnances

On Thursday 31 August 2017, the Government unveiled five1 ordonnances to reinforce social dialogue:

• ordonnance relating to the reinforcement of collective bargaining;
• ordonnance relating to the new organisation of social and economic dialogue in companies and encouraging the exercise and promotion of union responsibilities;
• ordonnance relating to improving the predictability and security of labour relations;
• ordonnance relating to various measures concerning the framework for collective bargaining;
• ordonnance relating to the professional prevention account.

In a series of news flashes over the coming days, we will look in more detail at the contents of these ordonnances and give you our analysis of the new aspects which we believe to be vital for companies.

We would also like to remind you that on Tuesday 10 October from 9am to 12.30pm, we are holding a conference devoted to the contents of the ordonnances due to be adopted on 22 September, with the participation of Yves Struillou, Director General of Labour, and the teams from the Directorate General of Labour who drafted them.

As it had stated, the Government did not wait for the Constitutional Council to deliver its decision concerning the enabling legislation to publicly reveal the content of the ordonnances, which are the result of long weeks of consultation with union and employer representatives.

In view of the appeal lodged against the law, that decision, which is due to be delivered during the week of 4 September 2017, is unlikely to hold any surprises for the Government, unless the Council raises a point of itself.

The ordonnances are likely to be adopted by the Council of Ministers on 22 September, for publication in the official gazette sometime around 25 September.

An initial analysis of the content of the ordonnances indicates that the Government has revised its position in some respects:

• as this is a subject which could raise problems of compatibility with the Constitution, the Government refrained from referring to collective bargaining the definition of cases justifying use of fixed-term contracts, temporary employment contracts and project-specific contracts;
• in respect of compensation due in the event of dismissal without real and serious cause, the enabling legislation and Government communication suggested that a single scale would be defined by the ordonnances, as the Macron law had attempted to do, before being rejected by the Constitutional Council. Finally, the ordonnances define the minimum and maximum amounts, based on the size of the company's workforce, the courts being given discretion within those limits to assess the loss suffered by the employee.

When do the ordonnances come into force?

In principle, unless otherwise stated, ordonnances are effective from the day following their publication in the official gazette.

However a different method has been chosen by the Government for the ordonnances designed to reinforce social dialogue, excluding the ordonnance relating to the professional prevention account.

The interim provisions of the other ordonnances state that: “The provisions of this ordonnance come into force on the date of publication of its application decrees and at the latest on 1 January 2018.”

Unless otherwise stipulated, this provision defers the entry into force of all of the ordonnance’s provisions until publication of the decrees required for application of some of those provisions. It would therefore appear that the Government has learned its lesson from the Rebsamen and El Khomri laws and decided to avoid the staggered entry into force of the ordonnances and the resulting complexities.

This method has the advantage of offering clarity and allowing companies to assimilate radical reforms.

Nevertheless, the ordonnances stipulate the immediate entry into force of some of their provisions, particularly in terms of securing termination of the employment contract, and the differed entry into force of other measures, such as generalisation of the majority condition for concluding collective agreements, which will only come into force from 1 May 2018.

1 The full text of the five ordonnances can be viewed on the Government’s website: http://www.gouvernement.fr/les-ordonnances-pour-renforcer-le-dialogue-social