Towards a new approach to the labour law applicable to contractors’ personnel
On 18 October, CERN and its two Host States will sign agreements on the labour law applicable to the personnel of contractors operating on the CERN site. Once they have entered into force, the agreements will facilitate execution of service contracts for both firms and CERN, and will provide the personnel concerned with better security and more stability.
On 18 October 2010, CERN and its Host States have signed a tripartite agreement on the labour law applying to service contractors’ personnel.
A site that straddles the French-Swiss border makes CERN unique among international organizations. Although this unique characteristic is a fine symbol of international collaboration, it also entails some legal and administrative difficulties.
On 18 October, CERN and its Host States have signed a tripartite agreement on the labour law applying to service contractors’ personnel. This agreement will be supplemented by a bilateral agreement between France and Switzerland amending the 1965 agreement relating to the extension of the CERN site onto French territory. The purpose of these agreements is to facilitate application of labour law by contractors where they conduct operations simultaneously on the French and Swiss parts of the CERN site. They should also make the working conditions of the personnel concerned more predictable and more stable. This is an important change, given that CERN has about a hundred service contracts.
It will also be the first time that CERN and its two Host States sign a tripartite international agreement. “This first tripartite agreement is the fruit of exemplary collaboration between CERN and its Host States", explains Friedemann Eder, Head of the Relations with the Host States Service.
In accordance with the principle of territoriality established in 1965 when the CERN site was extended onto French territory, contractors and their personnel conducting operations on the Organization’s site are subject to the legislation of the territory on which the work is performed. The principle of territoriality implies that, when a firm is conducting operations on the French part of the CERN site, it is subject to French law, and when it is conducting operations on the Swiss part, it is subject to Swiss law. This principle complicates the management of contracts by contractors, particularly on the Meyrin site which lies on both Swiss and French territory.
The difficulties are most pronounced in the field of labour law. Imagine, for instance, a contractor's employee who has to paint a wall in Restaurant No. 2 and then cross the road to give a door at the Computer Centre a fresh coat of paint. By crossing the road, the employee passes from the jurisdiction of one labour law to another, with different working hours, leave entitlements and public holidays. It’s a real headache for the employer and for the work inspectorates. It’s also a source of insecurity and instability for the employee, who cannot accurately predict his working conditions.
Since 2004, a group comprising representatives of the two Host States and CERN has been addressing this issue.
To remedy the difficulties encountered in applying two different legislations concurrently, the agreements provide that, in future cases, only one labour legislation govern the working conditions of personnel of contractors operating on the whole of the site.
“Determining which labour law is applied to a contractor’s personnel will depend upon where the predominant share of the contracted work is to be carried out”, explain Jean-Michel Favre and Angela Goehring-Crinon of CERN’s Legal Service, who took part in drafting the agreements. In other words, if CERN foresees that a firm will have to provide 60% of its services on the Swiss part of the site and 40% on the French part, Swiss labour law will apply to the contractor’s personnel. “This puts an end to any ambiguity”, underlines Cristina Lara, who is in charge of industrial services in the Finance Department. “The contractor will know from the outset which labour law his employees will be subject to throughout the contract.” In addition, the agreements stipulate that the contractor has a duty to share this information with his employees and any subcontractors.
This new rule seems very straightforward but in fact constitutes something of a legal landmark. The Host States have effectively agreed to renounce the normal application of the principle of territoriality in this specific context. As a result, the text has entailed many discussions and validations, including by the European Commission.
And there’s still one important stage to complete. The agreements will have to be ratified by the parliaments of the two Host States before they can enter into force, which should take a further year. Until then, contractors will remain subject to the principle of territoriality.
by Corinne Pralavorio