Macron Ordinances: the ultimate step of a social reform

Par Eva Chekroun et Jennifer Carrel

The French Constitutional Council has been seized in order to verify the compliance with the French Constitution of the Ratification Act of the “Macron” ordinances, reforming the French Labour Code. On March 21, 2018, the Constitutional Council has published its decision: practically the entirety of the Act has been validated. The ordinances will acquire force of law, as soon as they will be adapted and published on the Official Journal, in a few days. Most of the reform is validated The French Constitutional Council has ruled that the following measures were compliant with the French Constitution:

• The new collective agreements hierarchy and the possibility to negotiate within the Company without union representatives (consultation of the employees on small to medium-sized enterprise, for example);
• The merger of the personnel representatives bodies to create a single body for social dialogue: the social and economic council (SEC);
• The collective contractual termination bargaining agreement;
• The scale proving the level of the damages in case of unfair dismissal;
• The scope of the economic ground and redeployment applicable in case of redundancies: the national level.

The reservation and censorship The French Constitutional Council has censured some Ratification Act provisions and made a reservation. The French Constitutional Council has partially censured article 6 of the Ratification Act, which created derogation to the obligation to hold partial elections in the SCE (article L. 2314-10 of French Labour Code).  This derogation aimed a vacancy resulting from a cancelation of the election process in case of non-compliance with the rules of a balanced representation of men and women on the list candidates. Partial elections are now mandatory even in this particular situation. Furthermore, the French Constitutional Council made a reservation. The ordinances provided the collective bargaining agreements could be challenged within 2 months as from their publication with the national database (article L. 2262-14 of French Labour Code). Since a portion of such agreements is allowed not to be published, the French Constitutional Council has ruled that such timeline would not apply to unpublished portions of such collective bargaining agreements but would only run as from the date individuals have knowledge of such portions.