General framework of collective labour relations

General framework

Structure of collective conventions/agreements and legislation/regulations

Article L. 2251-1 of the Labour Code provides that: « a convention or an agreement may contain provisions that are more favorable to employees than the legal provisions in force. They may not derogate from provisions which derive from public policy. »

The collective agreement or convention may derogate from the provisions on (relative) social public order of laws and regulations, if more favorable to employees.

However, the legislator may authorize the social partners to conclude collective agreements derogating towards less favorable provisions, based on the lack of constitutional value of the social public order principle (Constitutional Council, decision no 2004-494 DC, April 29, 2004). For example in terms of maximum working hours or increase rates for overtime.

Distinction between absolute public order and (relative) social public order

Absolute, or unconditional, public order cannot be the subject of any derogation, either in a more favorable sense or in a less favorable sense.

In accordance with Article L. 2251-1, a convention or an agreement « may not derogate from provisions which are of a public order nature ». The provisions relating to absolute public order are declared:

• either by the legislator (e.g.: notice period in case of dismissal - art. L. 5542-43, Transport Code);
• either by the judge (e.g.: right to strike, criminal charges).

In principle, only the clauses of a collective agreement that are more favorable than those of employment contracts are automatically and immediately substituted to them (art. L. 2254-1, Labour Code)

However, a new, less favorable collective agreement applies to employees only when legal provisions expressly provide for it.

• This is the case for the so-called "collective performance" agreements which aim to respond « to necessities related to the operation of the company or with a view to save or develop employment » (art. L. 2254-2, Labour Code).

Art. L. 2254-2, Labour Code: « The provisions of the agreement are automatically substituted to conflicting and incompatible clauses of the employment contract, including in terms of remuneration, working hours and professional or geographical mobility within the company. »

Exercising the right to strike

The strike does not break the employment contract, except in case of serious misconduct attributable to the interested party. No one may be punished, dismissed or subjected to a discriminatory measure when exercising normally the right to strike. Any provision or any act to the contrary is null and void by operation of law. It is forbidden to employ temporary workers to replace striking seafarers residing outside France (Art.. L 5622-4 of the Transport Code).

Relationship between the CBA and the SEA

When an employer is bound by the clauses of an agreement or convention, these clauses apply to employment contracts concluded with him, unless more favorable stipulations are included in the said SEA (art. L. 2254-1, Labour Code).

Collective labour relations for seafarers residing outside France

The Transport Code provides that seafarers residing outside France can "freely join the professional union of their choice" (art. L. 5622-1 of the Transport Code). Hence, foreign seamen may join, if they wish, a French trade union and exercise their right to strike as well as the right to collective bargaining.

Collective conventions or agreements applicable to seafarers residing outside France are governed by the law and the language chosen by the parties (art. L. 5622-2 of the Transport Code). They may not contain clauses that are less favourable than the provisions resulting from the application of this Title to non-resident seafarers.

Seafarers residing outside France participate to the election of crew representatives (art. L. 5543-2-1 of the Transport Code).