Posted Oct 11, 2022 6:58 PMUpdated on Oct 11, 2022 at 7:32 PM
In the event of a strike, requisitioning civil servants to ensure the continuity of public service is a classic. This is what happens, for example, with each social movement in hospitals to guarantee the continuity of care. Another thing is to requisition private sector employees, as the Prime Minister has decided to do to restart the Esso depots (subsidiary of the American giant ExxonMobil).
The weapon is not new. Nicolas Sarkozy had made use of it in 2010, when, in mid-October, a massive strike in refineries and fuel depots against his pension reform had led to the breakdown in more than half of the gas stations. The government can therefore rely on the case law of the Council of State established in the judgment of October 27, 2010 validating the prefectural decree concerning the oil depot of Gargenville, in the Yvelines, and describing a clever balance.
The right to strike, a fundamental freedom
The measure which gave rise to a reframing of France by the International Labor Organization in 2011, should not be confused with the blocking of a company by a picket aimed at preventing its operation and employees who wish it to work, which is illegal. It consists of imposing on employees who have stopped working in protest to resume it against their will. Suffice to say that it violates the right to strike, which is a fundamental freedom and that it must be calibrated to limit it to a minimum.
Based on Article L. 2215-1 of the General Code of Local Authorities, the Council of State underlines in its decision that a prefect “may legally […] call on striking employees of a private company whose activity is of particular importance for the maintenance of economic activity, the satisfaction of the essential needs of the population or the operation of public services, when the disturbances resulting from the strike create a threat to public order”. But he specifies that he “can only take the necessary measures, imposed urgently and proportionate to the needs of public order”. Clearly, it is not possible to impose a simple return to a completely normal operation by requisitioning all the striking employees.
In the present case, to validate the decree examined, the high administrative court relied on the fact that the neighboring Roissy airport “only had three days of fuel left” and that the shortage “threatened the refueling of public services and basic necessities vehicles and created risks for road safety and public order”. The judgment further specifies that the staff requisitioned was “limited to the necessary shift teams, in particular for security reasons” and represented only “a fraction of the total workforce” even if it was “the ‘essentially striking employees’.
Weigh each word in the trebuchet
It is not insignificant that during the hearing, in October 2010, the administration partially reversed course by ultimately qualifying as erroneous one of the arguments invoked in the decree to launch the requisition: allowing the reception and domestic fuel delivery. The Council of State has confirmed that they do not “correspond[aient] not to the necessities of public order” in its decision. This makes it possible to measure that each word of the decrees which will be taken in the coming days by the prefects will have to be weighed with a trebuchet in order to respect the triptych of necessity, urgency and proportionality.
These precautions also explain the caution of the government, which speaks only of Esso depots, not refineries. And even more on TotalEnergies, for which there is no question for the moment of requisitions. Unlike Exxon, where a majority wage agreement was reached, the management of the French group refuses to open negotiations until the strike has ceased.
On Franceinfo, the secretary general of the CGT Chemistry Federation, Emmanuel Delepine, who is not known to be tender, announced that he had “sent a letter to the Minister of Labor to request state mediation”. During current affairs questions, the Prime Minister invoked the need to “grab the outstretched hand for some, negotiate in good faith for others”.