Infotech “Requisitions are an infringement of the right to strike”

“Requisitions are an infringement of the right to strike”

Elisabeth Borne has decided. “I asked the prefects to initiate, as permitted by law, the procedure for requisitioning the personnel essential to the operation of the depots”, acted the Prime Minister on Tuesday, about the strikers of the Esso-ExxonMobil group. Concretely, the employees of the depots concerned will be obliged to return to work, on the basis ofs “general needs of the nation”.

Requisitions from depot staff at Esso-ExxonMobil: “Are we going to work supervised by gendarmes? »

Except that the announcement does not pass among the strikers. The CGT of Esso-ExxonMobil denounced a decision which “trampling a constitutional right of workers in struggle”. While the government is also considering requisitions also at TotalEnergies, the conflict is tense. Between strike and blockage of many motorists, what does the law say, in particular the Constitution? Answer with Guillaume Tusseau, professor at Sciences Po and specialist in constitutional law.

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Since the announcement by Elisabeth Borne of the requisitions of the personnel to release the Esso-ExxonMobil deposits, the unions denounce in chorus a “challenging the right to strike […] violating a constitutional right of workers”. What about? Is the strike a constitutional right?

William Tusseau. Yes, the right to strike is a constitutional right: the preamble to the 1946 Constitution clearly enshrines it. However, the text specifies that it “is exercised within the framework of the laws which regulate it”, that is to say that the principle of this right to strike is enshrined but arranged by law. The 1963 text thus specifies “certain terms of the strike”, such as the filing of notice. Most of the limits have been set by the Council of State and case law.

No law specifically regulates the right to strike. This has been a recurring problem since the Constitution: the right to strike has no precise regulations in France, and the whole thing remains a little vague. The advantage is that this makes it possible to take all cases into consideration, without rigidity, and to adapt by decision to each situation. The drawback is that it is difficult to anticipate the outcome for each situation. In summary: yes, the right to strike is enshrined in the Constitution, but is not unlimited.

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What can the unions legally do against the prefectural decrees which act on the requisitions?

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The unions will certainly address summary freedoms on these requisitions, and the judge will then be able to assess the expression of the right to strike. There is no doubt: requisitions are an infringement of the right to strike. But this can be admitted if the judge considers that it is proportionate. For example if he considers the need for fuel more important than the strike, in particular for certain personnel (doctors, nurses, firefighters, police, possibly taxis, etc.). Or if he deems the time to restart the machines too long.

Shortage of fuels: what will change the requisition of personnel from Esso-ExxonMobil depots?

On the other hand, he may judge workers’ rights to be superior: for example, if all the personnel of a refinery are requisitioned, this may be judged disproportionate, since it would in fact be the re-establishment of a “regular service”as was the case in 2010 [le tribunal de Melun avait suspendu un arrêté de réquisition de 170 salariés grévistes de la raffinerie de Grandpuits parce qu’il s’agissait de « la quasi-totalité du personnel », NDLR].

Which side do you think the judge will lean on? Can the approach of the All Saints holidays, Saturday October 22, play a role?

I will not risk a prognosis. Everything will depend on the factual context of each situation. As for the All Saints holidays, I am doubtful, since the decision will certainly be made before. The first judgment will be rendered within a maximum of forty-eight hours, but it can go much faster, and sometimes decisions are rendered in a few hours by the administrative tribunal.

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If on the union side or on the administration side the judgment is not satisfactory, then an appeal can be lodged with the Council of State. This too can go very quickly. In all cases, these procedures are not suspensive, so the employees concerned must return to work as soon as they receive their requisition.

The general atmosphere in the country, in particular the denunciations of the ” hostage-taking “ of the strikers, can it influence the decision?

No. The judge will focus on each procedure locally, with specific issues. The general atmosphere can have an influence, but the judge tries to remain closed to the political words on the matter. The challenge will be above all to measure the spectrum of needs in the face of the demands of employees in the exercise of a right. Perhaps the specificities of each installation, each fuel, etc. will also be taken into consideration. Hence the fact that, from one department to another, the decisions could be different.

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