Summary
LEGISLATION
REFORM OF THE LITIGATION PROCEDURE REGARDING NOTICE OF TERMINATION OF THE EMPLOYMENT CONTRACT
Law No. 2014-743 of July 1, 2014
COLLECTIVE AGREEMENTS
Extension to all companies covered by the so-called SYNTEC collective agreement, of the amendment concluded on April 1, 2014 on working hours in the SYNTEC branch
EQUALITY BETWEEN MEN AND WOMEN WITHIN THE COMPANY
CONCILIATION BETWEEN PRIVATE AND PROFESSIONAL LIFE
The contribution of law no. 2014-873, which entered into force on August 6, 2014
REFORM RELATING TO UNEMPLOYMENT BENEFITS
Extension of the waiting period for the collection of unemployment benefits /
The system of rechargeable rights / Accumulation of unemployment and employment / Senior
JURISPRUDENCE
…of July 9, 2014
“a mobility clause applicable throughout France is sufficiently precise”
…of September 30, 2014
"possibility of concluding a mutually agreed termination during the suspension of the employment contract of an employee in the event of a work accident"
…of July 2, 2014
"opening the employee's mail and not responding to his requests for supplies leads to the presumption of the existence of moral harassment"
…of September 17, 2014
“the late submission of documents intended for the Pôle Emploi necessarily causes prejudice to the employee”
…of June 11, 2014
“it is up to the employer, not the employee, to monitor the execution of day passes”
…of July 9, 2014
“the wage prescription does not extend to the action for damages for separate prejudice”
LEGISLATION
Reform of the litigation procedure for noting the termination of the employment contract
Law No. 2014-743 of July 1, 2014 relating to the procedure applicable before the industrial tribunal in the context of an act of termination of the employment contract by the employee.
This law creates article L.1451-1 of the Labor Code:
“When the Labor Court is seized of a request for qualification of the termination of the employment contract on the initiative of the employee because of facts that the latter accuses his employer, the case is brought directly before the judgment office, which decides on the merits within a period of one month following its referral. »
The hearing before the conciliation board is cancelled.
Pursuant to these provisions, employees who are forced to terminate their employment contract due to serious breaches for which they blame their employer, will have their situation dealt with before the judgment office of the Labor Court in the weeks following their taking action.
Indeed, it should be remembered that an employee taking note of the breach of his contract must seize the Council quickly to have it recognized that the breach is attributable to his employer.
Until this reform, employees taking note of the termination were forced to wait for the case to be discussed many months after their referral, a period of time during which they found themselves unable to register with the organizations. unemployment insurance in the absence of delivery by the employer of the end-of-contract documents.
From now on, the cases having vocation to be evoked on the bottom more quickly, the employees should see their situation being regulated more quickly.
However, in practice, the objective of rapidity pursued by the legislator is likely to come up against the congestion of the industrial tribunals which will undoubtedly have difficulties in hearing these cases at short notice. Especially since in this case, the need for the two parties to have concluded and exchanged their documents between the receipt of the summons by them and the hearing, will be very likely to cause a referral of the evocation of the file to a subsequent hearing… Several months later.
The contribution of law n° 2014-873 of August 4, 2014 for equality between women and men, which entered into force on August 6, 2014
The law for real equality between women and men of August 4, 2014, aims to better ensure this equality within the company and the reconciliation between private and professional life.
The main contributions of the law are:
- Stronger protection against harassment
The employer who becomes aware of facts of sexual harassment in the company must take the necessary measures to put an end to it and sanction it (arts. 40, 41 and 42).
- The simplification of the negotiation in terms of professional and wage equality and the applicable sanction in the event of non-compliance by the employer
At company level, the question of equality between women and men was the subject of two annual negotiations: one on professional equality (article L. 2242-5 of the labor code) and the another on equal pay and the elimination of pay gaps.
The law of August 4, 2014 provides for a single annual negotiation on the "objectives of professional and wage equality between women and men in the company, as well as on the measures to achieve them".
Two new negotiation topics are introduced: career development and job diversity.
In the event of non-compliance with the annual negotiation obligation, employers may be prohibited from access to public procurement.
This penalty will apply to public procurement contracts entered into as of December 1, 2014.
It should be noted that this penalty will also apply to employers convicted of discrimination (art. 16).
- new leave of absences for employees
Employees concluding a PACS as from August 6, 2014 will have the legal right to 4 paid days off as for a wedding (art. 21)
The spouse of a pregnant woman will benefit from three authorizations of absence during the pregnancy, paid ( art.11).
- modification of family benefits
As of October 1, 2014, the free choice of activity supplement, paid to employees on parental leave, is now called “shared child education benefit”.
The duration of payment of this benefit is extended if the leave is shared between the two parents (art 8).
- protection of young fathers for four weeks against dismissal
Article 9 provides that for 4 weeks following the birth of his child, the young father can only be dismissed if he commits serious misconduct or if it is impossible to maintain his employment contract.
The protection of the pregnant woman extends to the young father.
The dismissal of a young father for a reason other than those provided for could give rise to reinstatement or compensation, in terms of labor law.
On the criminal level, article R 1227-5 concerning "pregnancy" and "maternity" being strictly applied, the sanctions provided for cannot, to date, apply in the event of non-compliance with the rules. in the presence of a male employee.
Collective agreements
Order of 26 June 2014 extending an amendment to an agreement concluded under the national collective agreement for technical design offices, consulting engineering firms and consulting companies (No. 1486) (Official Journal of July 4, 2014):
By decree of June 26, 2014, it was extended to all companies covered by the so-called SYNTEC collective agreement of December 15, 1987 (IDCC no. 1486], the amendment concluded on April 1, 2014, modifying the article 4 of chapter 2 of the national agreement of June 22, 1999 on working hours in the SYNTEC branch
. no. 11-28398 FS-PB), as these do not ensure the protection of the safety and health of the employee with regard to working hours.
Following this judgment, any individual package agreement signed between the employer and an employee in application of this national agreement, was considered as
I suck. The social partners have therefore negotiated new provisions taking into account the criteria to be met by the collective agreement provisions for them to be valid, under the terms of the amendment of 1 April 2014.
Article 4.2 is extended, subject to compliance with the case law of the Court of Cassation (Cass. soc, January 31, 2012, No. 10-17593), which specifies that an individual agreement for a flat rate in days over the year must set the number of days worked and specify the procedures for counting days or half-days worked and taking days or half-days off, and therefore only a simple reference by the employment contract to the provisions of the agreement collective agreement or the company agreement providing for the fixed daily rate is insufficient.
The first paragraph of Chapter 2 is extended, provided that under the provisions of Article L. 3121-39 of the Labor Code, the agreement does not preclude what may be determined by a company agreement or establishment the main characteristics of individual lump-sum agreements, since they guarantee the protection of the safety and health of employees, in accordance with the case law of the Court of Cassation (Cass. soc, May 14, 2014, n ° 12-35033).
This amendment was initially only applicable to companies attached to the federations that were signatories.
It has become applicable to all companies in the branch from the date of publication of this decree for the remaining period and under the conditions provided for by said amendment.
From now on, the individual flat rate agreements concluded between the employees and their employer from this date in application of the new provisions of the so-called Syntec collective agreement, are valid.
The reform relating to unemployment compensation
The agreement of May 14, 2014 relating to unemployment compensation was approved by ministerial decree of June 25, 2014.
The decree of June 25, 2014 makes the provisions of the agreement applicable on July 1, 2014 mandatory, except for rechargeable rights applicable on October 1, 2014.
Decree no. 2014-670 of June 24, 2014 incorporated these rules into the Labor Code in article R. 5422-2 to take into account the new rechargeable rights system.
A first UNEDIC circular of July 2, 2014 mentions the rules for the entry into force of the new provisions, which will be detailed and explained in the general presentation circular of September 30, 2014.
The agreement is applicable to employees whose employment contract ends from July 1, 2014, the date of the end of the contract being the date of the end of the notice, whether it is executed or not (Labour Code art. L. 1234-4).
In the event of redundancy, the agreement is applicable to redundancies for which the procedure is initiated after June 30, 2014, i.e. from July 1, 2014, so that any procedure initiated before June 30, 2014, falls under the agreement of May 6, 2014. 2011, its annexed general regulations and its annexes.
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Extension of the “waiting period” for the collection of unemployment benefits
Until July 1, 2014, a person unemployed after a dismissal or a conventional termination had to wait a maximum period of 75 days to be compensated.
From now on, article 21 of the Unédic general regulations provides that when the amount of compensation received exceeds the compensation provided for by law, this period may be extended up to 180 days, or 6 months.
This extension will depend on the amount of the compensation: the higher the compensation, the longer the waiting period.
The stretching of the waiting period will not, however, concern the indemnities paid in the event of economic dismissal.
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The system of "rechargeable rights"
The unemployed will be able to accumulate rights to benefits for each job they have done.
To obtain these new rights, the unemployed must have worked for at least 150 hours, either at once or through several short contracts.
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Interim
Temporary workers will be subject to the rules of the general scheme, in particular with regard to the system of “rechargeable rights”.
Certain special rules will be retained, for example with regard to the calculation of the daily reference salary of a temporary worker.
This reloading of rights is provided for in articles 28 and 29 of the general regulations appended to the agreement of 14 May 2014.
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Accumulation of unemployment – employment
The “reduced activity” regime is amended in Articles 30 to 34 of the Unédic Regulations.
The possibility for an employee to cumulate the ARE is no longer limited to 15 months and the calculation rules have changed: 70% of the gross salary is thus deducted from the amount of the allowance received during periods of work.
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Seniors over 65
Until July 1, 2014, senior employees aged 65 and over were exempt from Unédic contributions.
Article 51 of the general regulations annexed to the agreement deletes the reference to the age limit of 65 years.
From now on, a “specific solidarity contribution” has been introduced, calculated on the same basis as unemployment contributions: 6.40% (4% for the employer's share and 2.40% for the employee's share).
An employer's contribution of 0.30% is also due under the AGS.
JURISPRUDENCE
A mobility clause applicable throughout the territory is sufficiently precise
Cass.soc.July 9, 2014
According to constant case law of the Court of Cassation, the mobility clause must precisely define its geographical area of application, under penalty of nullity (Cass. soc. July 12, 2006, n°04-45396; Cass. soc. 9 January 2013, n°11-18790).
In a judgment published in the bulletin of July 9, 2014 (Cass. soc. July 9, 2014, n°13-11906), the Court of Cassation considered that the mention “French territory” defines a sufficiently precise geographical area.
In this case, the mobility clause in dispute was worded as follows:
"Given the nature of his duties, Mr. M. undertakes to accept any change in the workplace required by the interests of the company or the operation of the company within the geographical limits of French territory. without this change constituting a modification of the employment contract. »
The employees argued that the mention “French territory” was imprecise on the grounds that it did not exclude the Dom-Tom.
This plea was expressly rejected by the Court of Cassation, which considered:
“The mobility clause precisely defined its geographical area of application and did not confer on the employer the power to unilaterally extend its scope”
The mention “French territory” is therefore not an invalidating mention.
Possibility of concluding a contractual termination during the suspension of the employment contract in the event of a work accident
Cass.soc.September 30, 2014
Under the provisions of Article L. 1226-9 of the Labor Code, the employment contract of an employee whose employment contract is suspended for an accident at work or occupational disease, can only be terminated for two exhaustively listed reasons. :
“During the periods of suspension of the employment contract, the employer may only terminate the latter if he justifies either serious misconduct on the part of the person concerned, or his impossibility of maintaining this contract for a reason unrelated to the contract. accident or illness. »
This article nevertheless refers to the termination of the employment contract by the employer, namely dismissal.
This text of the Labor Code does not settle the question of whether or not a mutual agreement can be concluded with an employee who is the victim of an accident at work or an occupational disease.
In its circular of March 17, 2009 relating to contractual termination (Circulaire DGT n° 2009-04 of March 17, 2009 relating to conventional termination of an open-ended contract), the labor administration considered that conventional termination could not be signed during the periods of suspension of the employment contract which are protected by the legislator (maternity leave, accident at work, occupational disease, etc.).
The Court of Cassation took the opposite view of the labor administration.
In a judgment of September 30, 2014, promised to be widely published (Cass. soc. September 30, 2014, n°13-16297, PBR), the Court of Cassation expressly authorized the conclusion of a conventional breach during a period of work suspension following an accident at work or an occupational disease:
“But given that the Court of Appeal rightly held that, except in the case of fraud or defect of consent, not invoked in this case, a conventional breach can be validly concluded pursuant to Article L. 1237 -11 of the labor code during the period following an accident at work or an occupational disease. »
With this judgment, the Court of Cassation once again confirms the system of contractual termination. It will be recalled that it has accepted the possibility of concluding a contractual termination:
- In a context of conflict and in the event of long-term sick leave (Cass. soc. 30 September 2013, n°12-19711);
- Even in the event of the existence, at the time of the conclusion of the termination agreement, of a dispute between the parties to the employment contract (Cass. soc. January 15, 2014, no. 12-23942).
The only limit set by the Court of Cassation is, apart from cases of fraud, the existence of a defect in the consent (error, fraud, violence).
However, the Court of Cassation has not, to date, yet decided the question of the validity of the conventional termination concluded with an employee on maternity leave.
Opening the employee's mail and not responding to his requests for supplies leads to the presumption of the existence of moral harassment
Cass.soc.July 2, 2014
Proof of the existence of moral harassment weighs primarily on the employee.
According to the provisions of Article L. 1154-1 of the Labor Code, it is up to the employee (or the candidate for a job, an internship or a training period):
“To establish facts that allow to presume the existence of harassment. In view of these elements, it is incumbent on the defendant to prove that these actions do not constitute such harassment and that its decision is justified by objective elements unrelated to any harassment. »
The whole difficulty lies in the nature of the elements that the employee must provide in order to presume the existence of moral harassment.
In a judgment of July 2, 2014 (Cass. soc. July 2, 2014, no. 13-10979), this question was settled with regard to the opening by the employer of the employee's letters and the non-response in reasonable deadlines for requests for supplies and work equipment.
In this case, in the context of a moral harassment action brought by an employee, employed as a technical executive assistant in the RATP logistics department, she provided evidence to the proceedings demonstrating that her employer had, on several occasions, opened his mail at his place of work and that he had not responded to requests she had made for stationery supplies and to various written complaints.
The Court of Cassation considered that such elements gave good reason to presume the existence of moral harassment:
"That in so ruling, while she had noted that the grievances alleged by the employee based on the untimely opening of her mail by her hierarchical superior and the non-satisfaction within a reasonable time of her requests for supplies and work equipment, were materially established and that there was added medical data produced by the employee, which resulted in her producing elements making it possible to presume the existence of harassment, so that it was incumbent to the employer to justify that these acts were justified by objective elements foreign to any harassment, the Court of Appeal, which did not draw the legal consequences from its findings, violated the texts referred to above; »
Late submission of documents intended for the employment center necessarily causes harm to the employee
Cass.soc.September 17, 2014
As part of a legal action brought by an employee challenging the merits of his dismissal, he filed a claim for compensation for his loss for the late submission of his end-of-contract documents.
In this case, the employer gave the employee concerned, after corrections, his Pôle Emploi certificate, eight days after the end of the notice.
Could this slight delay justify a condemnation of the employer for late submission of the substantive documents?
The Court of Appeal answered in the negative, holding that it was only a slight delay and that the employee did not provide proof of the prejudice which resulted for him.
The Court of Cassation quashed the decision of the trial judges, considering, for the first time to our knowledge, that:
“The late submission of these documents to the employee necessarily leads to damage which must be repaired by the trial judges” (Cass. soc. September 17, 2014, No. 13-18850).
It is therefore sufficient for the employee to demonstrate the existence of a delay in the delivery of these end-of-contract documents, to be entitled to request specific compensation in this respect.
The wage prescription does not extend to the action for damages for separate prejudice
Cass.soc.July 9, 2014
The law of June 14, 2013 relating to the security of employment (law n°2013-504 of June 14, 2013) reduced from 5 years to 3 years the action in payment or recovery of the salary (Article L. 3245- 1 of the Labor Code).
The ordinary law limitation period was reduced from 30 years to 5 years by the law of June 17, 2008 (Law no. 2008-561, June 17, 2008; Article 2224 of the Civil Code).
The question arises as to whether the prescription of the action for payment of wages excludes claims for damages in compensation for the prejudice resulting from the delay in payment of the prescribed wages.
The Court of Cassation had to decide this question in a judgment of July 9, 2014 (Cass. soc. July 9, 2014, no. 13-23551).
In the present case, the facts of which still fell within the five-year prescription and the thirty-year prescription, a VRP employee filed a request for back pay almost seven years after the due date for the wages claimed, as well as a separate claim for compensation for the damage resulting from the reduction in unemployment benefits that the loss of remuneration had caused for her.
His first request for back pay was logically rejected by the trial judges who noted that the five-year prescription had been acquired.
Should his second request follow the same fate?
Yes, answered the trial judges who rejected the claim for compensation for damages filed by the employee, on the grounds that the "five-year prescription for the payment of a wage claim [is] exclusive of any claim for damages relating at the prescribed period. »
Not ruled the Court of Cassation, for which the employee provided proof of a specific damage distinct from the claim for payment of salary and which therefore had to come under the prescription regime applicable to the claim for damages:
"While in so ruling, while in support of her claim for damages, the employee stated that the abatement unduly applied by the employer had led to a reduction in her unemployment benefits, which constituted a specific damage distinct from the claim for payment of wages, the Court of Appeal violated the aforementioned texts” (Cass. soc. July 9, 2014, n°13-23551).
Pursuant to this solution, if the employee is able to provide proof of damage distinct from his request for back pay, in particular by demonstrating the employer's bad faith, he would be entitled to seek compensation in this respect. within 5 years of the facts in question.
It is up to the employer, not the employee, to monitor the execution of day passes
Cass.soc.June 11, 2014
A judgment of the Court of Cassation of June 11, 2014 (Cass. soc. June 11, 2014, no. 11-20985) constitutes a new illustration of the rigorous control exercised by the latter on the system of the daily package.
In an annual report of 2007, the Cour de cassation announced a "reinforced monitoring of the application of the fixed daily rate scheme to employees, this attention being justified by the importance of the derogations from ordinary working time law that this package type entails.
(Annual report of the Court of Cassation for 2007). The Court of Cassation thus validated the provisions of the National Convention for Metallurgy relating to the daily rate, while condemning the employer for not complying with these provisions (Cass. soc. June 29, 2011, No. 09-71107).
On the other hand, the Court of Cassation invalidated the following contractual provisions on the grounds of their insufficiency:
- Chemistry (Cass. soc. 31 January 2012, n°10-19807);
- Technical design offices, known as Syntec (Cass. soc. April 24, 2013, no. 11-28398): following this judgment, the social partners concluded on April 1, 2014 a branch agreement relating to the day pass;
- Wholesale trade (Cass. soc. September 26, 2012, n°11-14540);
- Home help in rural areas (Cass. soc, 13 June 2012, n°11-10854);
- Accounting firms and auditors (Cass. soc, May 14, 2014, no. 12-35033).
In the event of invalidity of the collective agreement or the branch agreement, the employer can only remedy this situation by means of a collective company agreement meeting the requirements laid down by case law.
In the judgment of June 11, 2014 (Cass. soc. June 11, 2014, no. 11-20985), the Court of Cassation had to examine the validity of the provisions of the collective agreement for the building and public works branch of 6 November 1998 (BTP) and a collective company agreement which had been concluded to remedy the supposed shortcomings of the branch agreement.
However, the stipulations of the collective agreement for the construction industry and the company agreement in question placed the responsibility for monitoring solely on the employee.
The Court of Cassation sanctioned this lack of involvement by the employer, considering that neither the collective agreement for the construction industry nor the company agreement were such as to guarantee that the scope and workload are reasonable and well distributed over time and therefore to protect his health and safety.
The Court of Cassation therefore concluded that the individual fixed-price agreements per day were void.
Note: On December 11, 2012, two amendments to the national collective agreement for the construction industry were concluded defining detailed procedures for monitoring and controlling daytime packages in order to take account of the requirements of case law.
Consequently, except for a specific amendment to the employment contract, fixed-price agreements entered into before the entry into force of the aforementioned amendments are void and may therefore give rise to the payment of overtime.
