An ordonnance is a measure passed by the cabinet that comes into immediate effect without being submitted to parliament. Parliament must give the cabinet the right to pass ordonnances on specific subjects but they do not become statutory law until they have been ratified by parliament at a later date. So there is parliamentary debate, but there is less of it and only once the measure is actually up and running.
Ordonnances are used to enact measures that are more or less formalities, such as adopting European directives into French law, or ones that the government argues are urgent, for example during the Algerian war of independence. Their use has become more common during this century with 184 passed between 2000 and 2005, compared to 102 in the previous 40 years.
Trade unions and opposition parties accuse the government of trying to short-circuit debate on labour reform, an issue that massive opposition under the last government. That government finally bypassed parliamentary debate by using a different form of enabling legislation. This government claims it has a mandate because labour reform was a key point in President Emmanuel Macron’s election programme and points out that it is going through a consultation process with unions and employers’ groups. The parties not in government argue they are being deprived of their right to amend legislation and express their opposition during debates. The government intends to pass the ordonnances on or about the 20 September, just 90 days after starting negotiations with interested parties.
With 313 MPs, Macron’s Republic on the Move (LREM) party has an absolute majority and can count on the support of François Bayrou’s MoDem, so it will win the vote. But, if their right to debate the proposed law is being curtailed, opposition MPs, especially those from Jean-Luc Mélenchon’s France Unbowed, intend to put up a fight over the ordonnances. About 400 amendments have been tabled, with the hard-left party submitting a large proportion of them and promising to fight Prime Minister Edouard Philippe’s government “metre by metre”. The debate in committee, however, was not intense, with only four out of 232 amendments accepted and LREM representatives having little to say.
The definitive changes have not yet been drafted because the “social dialogue” with unions and bosses is still going on. But Labour Minister Muriel Pénicaud on Monday predicted that the reform will not be “lukewarm” and predicted “definite disagreements”. Macron has promised to put a cap on compensation for unfair dismissal, replace industry-wide agreements with company-level ones on issues such as working hours and merge workplace committees, arguing that these measures are needed to give employers confidence to take on more workers. A proposal to introduce tax deduction at source has been put off a year until 1 January 2019.
In parliament LREM and MoDem are definitely in favour. The mainstream right has split into two groups but both are likely to back most of the changes, although they say they would have liked to make some amendments. Employers’ groups are mostly in favour, with many of the proposals bearing a close resemblance to proposals made by the big bosses’ union, Medef, under the last government. On some questions the Medef feels the proposals do not go far enough.
France Unbowed and the Communist Party have promised to fight the measures in parliament and on the streets. The Socialists will vote against the right to use ordonnances “so as not to give the government a blank cheque” and say there are certain “red lines”, such as the cap on unfair dismissal pay, which they dropped from their own law, and the extension of a short-term contract used in the building trade to other industries. The unions have their doubts, with one confederation, the CGT, calling for a demonstration against the measures on Wednesday and France Unbowed promising to support it.
The mainstream right Republicans fear that curtailing parliamentary debate could mean the opposition is played out “on the streets”. With unions and the left already organising demonstrations, there could be a repetition of the strikes and sometimes violent protests that faced the previous government’s labour reform. Another potential problem is that Pénicaud has legal problems. A formal investigation has been opened against her into alleged favouritism in relation to her previous job at a state body that promotes French business abroad. If she is charged, according to a rule introduced by Prime Minister Edouard Philippe, she will have to resign and hand over the labour reform dossier to someone else.