Question 16442 — work

Summary

Ms. Fadila Khattabi draws the attention of the Minister of Labor to the difficulties of application and the need to specify the procedure to follow to implement the second paragraph of Article L. 3132-29 of the Labor Code, allowing a majority of members of a profession to request the repeal of a prefectural decree providing for an obligation for weekly closure of establishments of this profession in the geographical area concerned. Introduced by article 255 of law no. 2015-990 of August 6, 2015 for growth, activity and equal economic opportunities, this paragraph provides that “at the request of trade union organizations representing employees or organizations representing employers in the geographical area concerned expressing the will of the majority of members of the profession in this geographical area, the prefect repeals the decree”. However, neither the labor code nor case law has clarified the methods by which the existence of this majority is verified. The Council of State thus recalled that this existed "when the companies belonging to the employer organization(s) which have signed the agreement or have expressly declared themselves in favor of it operate the majority of establishments actually carrying out the activity in question or when the consultation of all the companies concerned showed that the agreement received the consent of a number of companies corresponding to the majority of these establishments” (CE December 18, 2017, no. 400561). However, according to information transmitted by the federation of bakery companies, the interpretation of these provisions made by the prefects of different departments is very diverse. Thus, in Finistère, seized of a request for suspension of the weekly closure order, the prefect requested the opinion of representative professional organizations on the advisability of maintaining or repealing it. On the contrary, upon receiving a similar request in the North, the prefect considered that, in order to rule on the merits of the request, it was appropriate for the requesting professional organization to provide, before a possible consultation, "the elements of proof to establish [that it] expresses the will of a new indisputable majority of members of the profession", consultation with professional organizations was not carried out in this department. More recently, as part of a consultation carried out in Morbihan, state services counted abstainers as votes against the repeal of the weekly closure order. Finally, in the Pyrénées-Atlantiques, state services have undertaken to review the rules of representativeness, even though a consultation had already been carried out. Professional organizations thus come up against a different interpretation of Article L. 3132-29 of the Labor Code in each department, a source of legal uncertainty and, ultimately, litigation. Also, she wishes to question him on the modalities of application by the prefects of the second paragraph of Article L. 3132-29 of the Labor Code, and in particular the elements that may be required in support of a request for implementation of the repeal procedure, the arrangements for organizing the consultation of members of the profession, the procedure to follow to verify the existence of a majority of the members of this profession in this geographical area, and the rules for counting votes to determine the will of the majority of members of this profession, as well as the opportunity to specify these rules by regulation, or failing that by circular.

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