At the Council of State, the reform of unemployment insurance put on the grill by a “dubious” judge

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At the Council of State, the reform of unemployment insurance put on the grill by a




At the Ministry of Labor, in December 2017.


© Corentin foals
At the Ministry of Labor, in December 2017.


Michel Beaugas clings to what his union lawyer, Me Haas, told him: “You should never trust your impression of audience.” Nevertheless: the confederal secretary of FO in charge of employment did attend the same spectacle as his colleague from the CGT, Denis Gravouil. And, leaving the Council of State Thursday afternoon, the two are struggling to imagine what could prevent the reform of unemployment insurance, supposed to come (partially) into effect on July 1, from being suspended by- the. Which would already be an important victory, pending a substantive decision which could take several months.

“Serious and immediate effects”

The hearing lasted nearly three hours. Three hours during which the summary judge, Anne Egerszegi, put the reform of unemployment insurance on the grill, not hiding that it was sometimes “Doubtful” faced with the arguments of the Ministry of Labor. First of all, a question of form: the six trade unions which seized the highest administrative court believe that there is an urgent need to suspend the reform, hence their summary proceedings. This one “Will have serious and immediate effects”, argued Me Rocheteau, the lawyer for Unsa, referring to the new method of calculating the daily reference wage (SJR), which makes it possible to determine the amount of the allowance paid to a job seeker. A pillar of the government project, this new method of calculation must now take into account periods not worked in the calculation of the SJR, automatically lowering it for precarious workers who have a series of short contracts interspersed with periods of inactivity. It will come into force on July 1 and could cause, for 1.15 million future job seekers, an average decrease of 17% of their allowance compared to what it would have been today. An estimation advanced in April by Unédic, the joint body which manages unemployment insurance.

To this, the ministry’s director of legal affairs, Charles Touboul, replied that nothing in his project is “irreversible” and that there is “A public interest in this reform entering into force”. Except that the judge then wondered why the government had nevertheless taken care to operate a “Decoupling” between the two engines of its fight against precariousness. Indeed, the bonus-malus system, which is supposed to hit companies abusing fixed-term contracts in the portfolio, will not make its first effects felt until September 2022 – and on a limited number of sectors. “There is no decoupling”, retorted Charles Touboul by arguing that for the bonus-malus, an observation period began on July 1. But while also recognizing that “The RLS is immediate, while the bonus-malus is an incentive”. “Have you considered a better fortune clause for the SJR? then asked the president to the Ministry of Labor, referring to the fact that two measures of the reform – the degression of allowances for the highest wages and the increase in the number of months necessary to obtain rights – were conditional on a clear improvement of the job market. “It was not considered”, replied the ministry.

“Disproportionate difference in treatment”

Substantive questions then: during the hearing, the very merits of the reform were questioned on numerous occasions by the president herself. “Do you think that currently, companies are able to offer, in the very uncertain context in which we find ourselves, long-term contracts or CDI? Anne Egerszegi asked government officials. And observe: “If indeed job seekers are not able, given the current economic context, to find long-term contracts, we are putting all our efforts on [eux].» In response, the representative of the ministry explained that the“Spirit of reform” was that the employees themselves could “Collectively exert pressure on recruiters so that sustainable jobs are offered”. An argument which amused the room, and which the unions hastened to attack. “There is no such thing as an opportunistic employee, it is an invention”, retorted Antoine Lyon-Caen, the lawyer for the CGT, based in particular on studies published at the beginning of May by the research directorate of the Ministry of Labor (Dares). According to this work, “These employees are rarely able to negotiate their working conditions”.

The summary judge was also very interested in the new method of calculating the SJR. Nothing could be more normal: after all, if this hearing took place, it is because the ministry published at the end of March a new decree supposed to correct the previous one, which had been censored in November 2020 by none other than … the Council of State. Already approached by trade unions, the latter had in fact considered, at the time, that the new method of calculating the SJR caused, “In certain cases, a manifestly disproportionate difference in treatment”. The court had emphasized that the SJR could “Vary from simple to quadruple” between two job seekers, despite “The same number of working hours” carried out. And today ? In recent weeks, unions have increased their publications to show that despite the introduction of a ceiling supposed to limit the number of days not worked taken into account in the calculation, significant inequalities remain. They also relied on studies by Unédic. However, the judge also immersed himself in these studies and, citing an example highlighted by Unédic in which the allowance of an unemployed person could go from 800 to nearly 200 euros, she said: “This difference is quite similar to the gap that was sanctioned in the November decision 2020.»

“Mechanics escaped the mechanics, or rather the engineers”, Antoine Lyon-Caen launched, evoking the upheaval represented by this new method of calculating the SJR. Such an upheaval, moreover, that the government published the day before the hearing a new decree supposed to correct several perverse effects of the previous one. Indeed, employees who have been on maternity leave or those who have been on partial unemployment were also affected by the reform, an effect recognized as “unwanted” by the Ministry of Labor. At the end of the hearing, the judge did not set a date for the rendering of her decision, the government having to deliver to her by next week new elements on the effects of her reform. This gave him the opportunity to point out to the representatives of the ministry that about twenty days before July 1, the longer they would delay in delivering these elements, the less time they would have to work on a new decree in the event of suspension.

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