I trained as an Employment lawyer, so I have something of an intellectual fetish for the technical side of Employment Law and the French Labour Code is worthy of fascination. This door-stop of a document is often decried as overly complicated. It topped out at 3,689 pages in 2015, although this misleading statistic (only a fraction of those pages are relevant to the majority of employers) misses the point that it is probably better that the most important contract in an individual’s life – the primary source of their income – is more regulated than less. Even so, there is significant room for improvement in a labour market where those in the tent (older people on permanent contracts) are protected to the expense of those outside (young people on temporary or fixed term contracts). Life is geared to the former, who find it easy to borrow money or get a mortgage, whereas the latter wait frustrated outside for their turn at life.
With such a pressing social problem, excluding the poor and marginalised from aspects of society, what did François Hollande promise to reform the Employment Code in 2012? Absolutely nothing. Therein lies the problem facing the French Government – how do you shake up one of the most ossified parts of French society without a mandate to do so?The new Minister for Labour, Myriam El Khomri, had a daunting task awaiting her when she arrived last September – to reform the Labour Code. The problem was that it wasn’t at all clear what should be in the reform – merely that the President wanted one final big reform for 2016 and this was to be it.
The desire for action, no matter what that action should be, explains much about what has gone wrong with this Socialist government since 2012. Rather than start with a desire to achieve a particular goal, the desire is merely to do something, and work out as the reform is laid out what the goal should be. Time and time again, this has led to the public taking umbrage with the technical aspects of the reform, all the while not understanding what the government was trying to achieve. The vague requirement to simplify the Labour Code was daft – the Code was largely rewritten several years ago by the “social partners” to simplify it and reorganise its layout. Predictably that process resulted in little apart from renumbering all of the articles.
The other argument by the government was to remove the psychological barriers to creating jobs that are often cited by employers’ organisations. Those barriers are probably real in part, but many stem from a lack of understanding about the rules rather than real issues with them. The barriers are also often exaggerated – the German labour code is more restrictive than the French one and yet Germany’s unemployment rate is 6.2% compared with France’s 10.3%. France has also had periods of much lower unemployment, albeit in times of significantly higher economic growth.
There are some areas of the Code which are rather daft. It makes no sense that labour courts can award damages totally disconnected from the actual loss sustained by sacked employees. It is odd that the court can re-evaluate the justification for a business trimming staff due to a downturn (many courts wouldn’t accept that the 2008 crisis was sufficient justification, for instance). Localised deals between staff or unions and bosses within businesses are hard because sector-wide agreements take precedence. The El Khomri bill contains measures that would deal with these anomalies, but it contains a lot more besides.
The fact that the bill wasn’t more focused and instead contains measures that would allow (for example) a reduction in the amount of compassionate leave for an employee, or the ability for an employer to defer paying overtime for up to three years, might be the result of a need to have bargaining chips to retain the key provisions. The government has already tried to introduce a sliding scale to labour court damages (thrown out in 2015 by the Constitutional Council) and the proposed cap of 15 months’ salary in certain cases (not all, contrary to much misreporting) seems to be non-negotiable. Even before it is officially published, the Prime Minister was busy tossing out other proposals, such as the ability to move employees in small businesses onto more flexible working time arrangements.
Rather than appear as a carefully laid out strategy however, the government’s reversals on some issues have sent the message to the bill’s opponents that it is open season, much like the Macron law before. The Communist backed CGT trade union has called for the bill to be withdrawn (although it hasn’t even been approved in cabinet yet). The Young Socialists and students unions are calling for a month of protests. Frantic back-pedaling, coupled with a pathetic PR campaign, which is sorely needed to counter some of the more misleading reports against the bill, has created the impression that the unions and the far left need only push hard enough and the bill will collapse. The incompetent left is nothing if not consistent.
The opposition is grounded in a basic sense that the bill is not “left wing”. This pernicious cry is not new. Ever since the Responsibility Pact, the left of the left has accused the government of lacking the necessary ideological purity. The opposition have nothing to offer as an alternative – they don’t have to. Their view (which is supported by some economists) is that the Labour Code is not the problem, the lack of growth is. Whilst you would expect more Leninism from such groups (“Everything is connected to everything else”), the left of the left do not see a broken Code and instead see a gimmick designed to help big business crush the man in the street. This opposition would be easy to rebut, were it not for the greatest weakness that François Hollande has suffered with every big economic reform attempted since 2014: he simply has no mandate.
When the 60 promises were published with much pomp during the Presidential campaign in 2012, they were designed to carry him through the five year term. The website luipresident.fr is tracking his progress (so far out of a total of 189 promises – the 60 were broken down into “mini-promises” – he has, according to the site, kept 53, partially kept 17, has yet to keep 78, has broken 8, leaving 15 which are too vague to say one way or the other). The promises (as luipresident.fr shows) were however often extremely precise so they could be implemented almost overnight, or vague to the point of meaninglessness. Above all, they did not set out a vision for the society that Hollande would preside over; they were more of a laundry list of scattered policy points. The vision was largely set out in the Le Bourget speech of January 2012, a barn-storming performance decrying the world of finance (described explicitly as the enemy) which galvanised the left.
Hollande’s more centrist position today is entirely the creation of the 2014 policy shift – he is in essence an entirely different politician now. He was not elected to carry out the El Khomri reform, notwithstanding that it contains some things that objectively should be done. When the campaign against the bill creates an online petition that garners 1.1 million signatures in the space of several weeks, when protests across the country (and public transport strikes) are planned for 9 March, and when the runner up in the Socialist primary election in 2011 washes her hands of the government, you have a legitimacy problem.
The recent cabinet reshuffle appeared designed to bring back in faces from the left of the party and the left of the left with the Greens, with a view to ensuring that Hollande would not be faced with a multiplicity of competitors from his left in 2017. That work has been entirely undone by the agressive push for a Labour Code reform. The left is in open revolt and talk has turned, more openly than ever before, of how the left will deal with the defeat of 2017 – a defeat that seems ever more likely.
Does Hollande want to go down in flames over this reform? Perhaps. Perhaps he wants a Schroeder moment, where people only recognise what he accomplished after he has gone. Or perhaps he seriously thought he could get the support he needed to push the bill through but has been undone by the incompetence of its roll-out.
In any event, if anything makes it to the statute books, it is unlikely to have much effect now or in the future. The Macron law has created private coach lines across the country, but no one elects a President for that. Defeat is no longer feared on the left – it is almost seen as a necessary purge. Who comes out top of the purge however is to play for between now and May 2017.
That is the saddest fact of all – the argument over the El Khomri bill is not about the contents of the Labour Code. It isn’t about the wider labour market, only a small part of it. It is about which politicians will be in work come 2017.