Forty-eight hours before the SNCF controllers’ strike planned for this weekend, Prime Minister Gabriel Attal opposed the right to strike on Wednesday February 14 against a duty to work. “The French (…) know that striking is a right, but I believe they also know that working is a duty,” said the Prime Minister, questioned about the movement which should disrupt train traffic in the middle of the weekend. end of school holidays.
The two principles that Mr. Attal seems to oppose are taken from the Preamble of the Constitution of 1946. Paragraph 5 affirms that “everyone has the duty to work and the right to obtain employment” while the seventh specifies that “the right strike action is exercised within the framework of the laws which regulate it”. What is the legal significance of these two principles? Are they really opposable? For Bérénice Bauduin, lecturer in social law at the University of Paris-I-Panthéon-Sorbonne, it would be “hypocritical” to compare two principles which do not have the same value in constitutional jurisprudence, where the “ duty to work” is not included.
The duty to work is a very broad concept; we can put whatever we want into it because it has not really been legally defined. Above all, it has never been the subject of a jurisprudential decision by the Constitutional Council. That is to say, its members have never had to decide on a law that would come into conflict with this principle. The very idea of ??a duty to work is embarrassing because, under French law, you cannot force someone to work. We cannot prevent an employee from resigning, it is a protected right. Even the principle of requisition, which can apply in certain circumstances, is very regulated. It also goes against certain international principles, such as forced labor which is prohibited by the international labor organization.
If the “duty to work” may have been opposed to the right to strike in certain political speeches, from a legal point of view, the Constitutional Council refuses to take up notions which are too vague, and for which it is not able to determine what the will of the settlor was. The duty to work may have been thought of in 1946 as a moral duty. But it is difficult to establish that the will of the constituents was to make it an obligation imposed on citizens.
The Preamble to the 1946 Constitution, from which the principle of the “right to strike” as well as that of the “duty to work” comes, was written under the Fourth Republic, at the end of the Second World War. At the time, it was a mainly symbolic text which aimed to guarantee a Republic with more social rights, to complement the Declaration of Human Rights which focused rather on civil rights, and to avoid a new political exploitation of poverty, like that which had brought Nazism to power. But the text was not intended by its drafters to have binding legal value.
It is only since a decision of July 1971 that the Constitutional Council recognized itself as competent to monitor the conformity of laws with the fundamental rights and freedoms guaranteed by the Constitution. However, not all of the principles that appear in the 1946 preamble have been activated in the same way in jurisprudence.
We may be tempted to oppose them in certain speeches, but this opposition is of the order of sophism. On the right to strike, the Constitutional Council was required on several occasions to rule on laws which aimed to regulate this right, such as the establishment of compulsory notice, or the law relating to the continuity of service audience. To limit the right to strike, a proportionate objective must be justified, with the same constitutional value.
This is not the case for the duty to work. Even in a decision like that of December 2022 on the application of the law relating to unemployment insurance, the Constitutional Council does not rely on the “duty to work” but rather invokes an “objective of public interest » or an incentive for workers to return to work.
There is therefore something quite hypocritical in using, as if they had the same value, the right to strike, protected as such by decisions of the Constitutional Council, and the duty to work which, legally, is non-existent. . Furthermore, the strike is not a lack of understanding of the duty to work. We do not go on strike with the aim of not working, but rather to obtain the satisfaction of professional demands.
