CGT v France

In this case the complainant organisation, Confédération générale du travail (CGT), alleges that the “indivisible thirtieth” rule which is laid down by Law No. 87-588 of 30 July 1987 (whereby any non-performance of service during part of one day gives rise to a deduction of earnings equal to the indivisible fraction of one thirtieth of monthly salary, each month being deemed to have 30 days), and which applies to strikes lasting less than one day in the state civil service, has the aim and effect of unjustifiably infringing the right of public servants to strike under Article 6§4 of the revised European Social Charter (RESC).

The European Committee of Social Rights (ECSR) considers it appropriate to also assess whether the application of the indivisible thirtieth rule gives rise to discrimination contrary to Article E in conjunction with Article 6§4 of the Charter.

In its assessment in relation to Article 6§4 RESC, the ECSR firstly observes that the right to strike is intrinsically linked to the right to collective bargaining and that restrictions on this right may be acceptable only under specific conditions. This also means that sanctions and other negative consequences, such as termination of employment contracts or excessive deductions from pay imposed on workers participating in lawful strikes are incompatible with the requirements of Article 6§4 of the Charter. [Para. 55].

The ECSR held that he indivisible thirtieth rule allows a disproportionate deduction from the pay of striking workers and in effect has a punitive nature which is not compatible with the exercise of the right to strike. [Para. 66].

In its assessment in relation to Article E read in conjunction with Article 6§4, the ECSR recalls that in order for an issue to arise under Article E there must be a difference in the treatment of persons in similar or comparable, but not necessarily identical, situations. [Para. 75].

In the instant case, the Committee considers that the sole question which poses itself from the angle of Article E is whether the difference of treatment of staff of the state and state bodies of an administrative nature when it comes to the application of the indivisible thirtieth rule in case of strike action compared with other public sector staff, such as staff of public or private enterprises, entities and bodies responsible for managing a public service, civil servants employed by local and regional authorities and staff of the state hospital service, has an objective and reasonable justification. [Para. 76].

The ECSR held that the difference in treatment between the different categories of staff with respect to the application of the indivisible thirtieth rule in case of strike action has not been shown to have an objective and reasonable justification and it therefore holds that there is a violation of Article E in conjunction with Article 6§4 of the Charter. [Para. 81].