Newsletter No. 27 – Social Law – November 2015

Newsletter No. 27 – Social Law – November 2015

Collective agreements

Summary

COLLECTIVE AGREEMENTS
National collective agreement for architectural, urban planning and environmental consultancies
Decree of July 2, 2015

CASE LAW

CONTRACT AND PERFORMANCE OF THE EMPLOYMENT CONTRACT
Fixed-term contract
No
Contractual elements
Employee travel time
Determination of the law applicable to the contract
Language used in documents
Reclassification of the contract
Example of reclassification
No compensation
Undeclared work
Joint liability
Application of an unlawful daily work schedule
Disability
Employer's obligation
TERMINATION OF THE EMPLOYMENT CONTRACT
Negotiated termination
Error regarding the termination date and the amount of compensation
Dismissal
Delegation of the power to dismiss
Serious misconduct by the employee

Pregnancy; Scope of protection
; Redundancy;
Compensation arrangements
; COLLECTIVE RELATIONS;
Collective agreements;
Invalidity of fixed-day
; Remuneration for break time
; Right to strike;
Exercise of the right to strike
; Employee representation;
Appointment procedures
; Challenging appointment

Collective agreements

Order of 2 July 2015 extending an amendment to the national collective agreement for architecture, urban planning and environmental councils (no. 2666)

The provisions of Amendment No. 20 of 21 January 2015 relating to the value of the point, to the aforementioned national collective agreement, subject to the application of the provisions of Article L. 2241-9 of the Labour Code which provides that the annual negotiation on wages also aims to define and program the measures to eliminate pay gaps between women and men, are made mandatory for all employers and all employees within the scope of the national collective agreement for architectural, urban planning and environmental councils of 24 May 2007.

Case law

Fixed-term contract: no end date

Soc. June 24, 2015 (No. 14-12.610) FS-PB:

To dismiss the claim for compensation for wrongful termination of the fixed-term contract, the Court of Appeal held that the contract specified that it had been established for the partial and temporary replacement of an absent employee, by transferring the first employee to the position of the second, who was absent due to illness. According to the Court of Appeal, the event that triggered the termination of the fixed-term contract without a specific end date was the return of the transferred employee to their original position, and not the return of the sick employee to theirs.
Citing Article L.1242-7 of the French Labor Code, the Court of Cassation overturned the Court of Appeal's decision and reiterated that a fixed-term employment contract concluded to replace an absent employee, without a specific end date, terminates upon the return of the replaced employee. Consequently, the contract could only end upon the return of the employee whose absence had been the reason for using such a contract, regardless of the transfer of duties by the employer.

Commuting time for employees without a fixed workplace

CJEU September 10, 2015 (C-266/14) Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) / Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA:

A company closed its regional offices and transferred all its employees to the central office in Madrid. The technicians, who install and maintain security systems in homes and industrial and commercial premises located within a geographical area encompassing one or more provinces, do not have a fixed workplace. Furthermore, each employee is provided with a company vehicle for daily travel between their homes and the various work sites, and for returning home at the end of the day. Since
the employer counts the travel time between home and clients not as working time but as rest time, the question arises as to whether this travel time at the beginning and end of the day should be considered working time within the meaning of Directive 2003/88/EC.
The Court of Justice declares that, where workers, such as those in the situation in question, do not have a fixed or usual place of work, the travel time that these workers spend on daily journeys between their home and the sites of the first and last client designated by their employer constitutes working time within the meaning of the directive.

Determining the law applicable to the contract

Soc. July 9, 2015 (No. 14-13.497) FS-PB:

An employee had been hired part-time as a program director by a foundation. Approximately three years later, she also entered into an employment contract with the foundation's owner to serve as a private secretary in charge of exhibitions. Both contracts stipulated that they were governed by Spanish law and Belgian law, respectively. Having been dismissed by both the foundation, due to the impossibility of maintaining her position in Paris, and the owner, the employee filed a claim with the labor court seeking payment of various sums related to the termination of the employment contracts, including overtime pay, compensation for undeclared work, and compensation for her pension loss, relying on the provisions of French law. To preclude the application of French law to the employee's claims against both the foundation and its owner, the Court of Appeal relied, in particular, on the contractual stipulations.
Pursuant to Articles 3 and 6 of the Rome Convention on the Law Applicable to Contractual Obligations, the Court of Cassation quashed the appeal judgment. In support of its decision, it noted, firstly, that the place of habitual performance of the work was in France and, secondly, that the Court of Appeal had failed to consider whether the provisions of Belgian and Spanish law chosen by the parties and relating to the employee's various claims were more protective than the mandatory provisions of French law, which would have been applicable in the absence of such choices.

Documents containing obligations for the employee in a foreign language

Soc. June 24, 2015 (No. 14-13.829) FS-PB:

Article L.1321-6 of the Labour Code, according to which any document containing obligations for the employee or provisions whose knowledge is necessary for the performance of his work must be written in French, is not applicable to documents received from abroad or intended for foreigners.

Reclassification of the employment contract

Soc. June 24, 2015 (No. 13-26.631) FS-PB:

An employee in the audiovisual sector, where the use of fixed-term contracts for specific purposes is permitted, having entered into 589 fixed-term contracts over a nine-year period with the same company, brought claims before the labor court concerning both the performance and termination of the contractual relationship. The Court of Appeal noted that the employee had been employed for nine years in the same position and concluded that these contracts had been intended to permanently fill a position related to the normal and ongoing activity of the company.
The Court of Cassation upheld the reasoning of the Court of Appeal, reclassifying the contracts, and dismissed the appeal.

No end-of-contract bonus is payable if the fixed-term contract is reclassified as a permanent contract

Soc. July 7, 2015 (No. 13-17.195) FS-PB:

By this ruling, the Court of Cassation recalls that the precariousness allowance provided for in Article L. 1243-8 of the Labour Code, which compensates the employee for the situation in which he is placed due to his fixed-term contract, is not due when the contractual relationship continues under an open-ended contract, in particular in the event of reclassification of a fixed-term employment contract.

Solidarity in the fight against undeclared work

Constitutional Council, decision no. 2015-479 QPC of July 31, 2015:

The applicant company challenged the constitutionality of the provisions relating to the joint and several liability of the principal in cases of undeclared work by its subcontractor.
The Constitutional Council noted, in particular, that the joint and several liability established by Article L. 8222-2 of the French Labor Code primarily serves as a guarantee for the recovery of debts owed to the Treasury and social security organizations, and dismissed all the applicant's claims.

Intentional element in cases of undeclared work

Crim. 16 June 2015 (No. 14-16.953) F-PB:

The Criminal Chamber clarifies here that intentional misconduct cannot be inferred solely from the employer's application of an unlawful fixed-rate agreement.
In this case, the employer was ordered by the Court of Appeal to pay the employee a fixed-rate indemnity for undeclared work. Indeed, according to the ruling, the intentional element of the undeclared work was established due to the combined intentional application of several incompatible systems, which were, in any event, contrary to the mandatory provisions of labor law. The company agreement in question was unlawful because it stipulated an annual number of hours exceeding the legal limit of 1,607 hours.

Disability: compensation arrangements for the employee in the absence of a second examination

Soc. June 30, 2015 (No. 13-28.201) FS-PB:

An employee, on sick leave since February 22, 2002, declared disabled on January 11, 2005, effective January 1, and retired at the age of sixty on February 28, 2010, filed several claims with the labor court on June 20, 2003. This employee is contesting the Court of Appeal's decision rejecting his claim for back pay from January 1, 2005, and, in the alternative, for damages due to the lack of a second medical examination to determine his incapacity for work.
The Court of Cassation then clarifies that if the employer who, after the first return-to-work medical examination, fails to have the occupational physician carry out the second of the examinations required by Article R. 241-51-1 of the Labor Code, which became Article R. 4624-31, commits a fault, it is up to the lower court judges in this case to award the employee not the payment of wages on the basis of Article L. 1226-4 of the Labor Code, which is inapplicable, but compensation for the actual damage suffered.

Mutual termination agreement

Soc. July 8, 2015 (No. 14-10.139) FS-PB:

Following two refusals to approve a termination agreement, the parties signed a third employment contract agreement on July 26, 2010, setting the termination date at August 6, 2010. The termination was approved by the administrative authority on August 9, 2010. To dismiss the employee's claims relating to the termination of the employment contract, the judgment holds, on the one hand, that various bonuses may have been omitted from the termination agreement of August 2010, it was necessary to acknowledge that the employer would owe a sum as a supplement to the termination indemnity. The court further emphasizes that, since the form approved on August 9, 2010, maintained the termination date as August 6, 2010, the employer should have been acknowledged for having formalized the termination on August 10, 2010, the day after the approval date.
The Court of Cassation quashes the appeal court's decision. According to the Court, while the stipulation by both parties of compensation less than that provided for in Article L. 1237-13 of the French Labor Code, and the shared error in the date set by the parties prior to the day after the approval, do not in themselves render the termination agreement null and void, it was incumbent upon the Court of Appeal, seized of claims for annulment and payment of sums, to rectify the termination date and, in the event of an insufficient amount of the negotiated termination compensation, to issue a monetary award.

Delegation of authority to dismiss

Soc. June 30, 2015 (No. 13-28.146) FS-PB:

In this case, the widow of an employee dismissed for serious misconduct challenged the Court of Appeal's ruling that the dismissal was based on serious misconduct. In support of her appeal, she argued that a person external to a company cannot be authorized to dismiss its employees.
According to the Court of Cassation, the Court of Appeal had found that the signatory of the dismissal letter held the position of Chief Financial Officer of the company that owned 100% of the employer's shares and that he had signed the letter on behalf of the company's legal representative. The Court of Appeal therefore correctly concluded that he was not an external party to the company.

The employee's refusal to return to their position at the end of the secondment constitutes serious misconduct

Soc. June 24, 2015 (No. 13-25.522) FS-PB:

An employee seconded to Réunion Island on the day of his recruitment for a two-year period, and ultimately recalled to Nanterre after four years, failed to report to his new assignment and was dismissed for serious misconduct. The employee appealed to the labor court, but his claim was dismissed by the Court of Appeal. The Court of Appeal held that the duties assigned to the employee during and after his secondment corresponded to his responsibilities and functions as an administrative and financial manager, and ruled that his reinstatement to a position in the Paris region, which resulted not from the implementation of a geographical mobility clause but from the end of the secondment, did not constitute a modification of his employment contract requiring his consent.
The Court of Cassation rejects the appeal against the appeal judgment and confirms that the employee's deliberate and repeated refusal to join, at the end of his secondment period, the agency which had been chosen by mutual agreement between the parties at the time of hiring, constituted serious misconduct making it impossible to retain him in the company.

Scope of protection for pregnant employees

Soc. July 8, 2015 (No. 14-15.979) FS-PBR:

An employee on maternity leave from March 12 to July 21, 2008, then on sick leave from July 22 to August 22, 2008, and finally on paid leave until the first week of September when she returned to work, was dismissed on September 11, 2008, due to persistent disagreements regarding the company's human resources policy. The employee, who intended to invoke the protection afforded by pregnancy to have her dismissal declared null and void, then filed a claim with the labor court. Her claim was dismissed because the sick leave certificate did not mention a pathological condition related to maternity.
The Court of Cassation upheld the appeal court's decision. According to the Court, if the four-week protection period following maternity leave is suspended by taking paid leave immediately following maternity leave, its starting point being then postponed to the date of the employee's return to work, the same does not apply in the event of sick leave.

Compensation arrangements in the event of dismissal for economic reasons

Soc. July 9, 2015 (No. 14-16.009) FS-PB:

The Court of Appeal ordered an employer to pay damages to one of its former employees for unequal treatment in the implementation of a redundancy plan. In this case, the employee had refused early retirement, and the redundancy plan stipulated that, as a result, her benefits were less substantial than those of other dismissed employees who did not meet the eligibility requirements for early retirement. According to the Court of Appeal, this difference in treatment could not be justified solely by encouraging employees aged 55 and over to accept early retirement.
The Court of Cassation clarifies that while a job protection plan may include measures reserved for certain employees, this is conditional upon all employees of the company in an identical situation with regard to the benefit in question being able to benefit from that benefit, unless a difference in treatment is justified by objective and relevant reasons and the rules determining the conditions for granting this benefit are defined beforehand and verifiable. Consequently, the Court dismisses the appeal against the appellate court's decision.

National collective agreement for hotels, cafes, and restaurants: invalidity of the fixed-day work agreement

Soc. July 7, 2015 (No. 13-26.444) FS-PB:

The head housekeeper of a hotel, whose work was covered by the national collective bargaining agreement for hotels, cafes, and restaurants, was dismissed for professional incompetence. The employee then filed a claim with the labor court. The Court of Appeal dismissed the employee's claims for back pay for overtime and damages for untaken compensatory time off. In this regard, the judgment held that the employment contract stipulated that the employee had managerial status with a fixed number of working days per year.
According to the Court of Cassation, neither the provisions of Article 13.2 of Amendment No. 1 of July 13, 2004, concerning working hours and their organization, paid leave, night work, and supplementary benefits to the National Collective Bargaining Agreement for Hotels, Cafés, and Restaurants of April 30, 1997, which, in the case of a fixed number of days worked per year, are limited to stipulating, with regard to the workload and working hours of the employee concerned, firstly, that the employer establish a monthly record of days worked, the number of days of leave taken, and those remaining to be taken in order to allow for monitoring of work organization, and secondly, that the employee benefits from the minimum daily rest period provided for by the collective bargaining agreement and from weekly rest, nor the stipulations of the company agreement of May 19, 2000, which only provide for the obligation to respect the legal limits on daily working hours and an annual interview between The agreements between the employee and their supervisor regarding work organization and the length of working days are insufficient to guarantee that the workload and workload remain reasonable and ensure a proper distribution of the employee's work over time, and therefore, to ensure the protection of the employee's safety and health. Consequently, the Court of Appeal should have concluded that the provisions of the employment contract relating to the fixed number of days worked were null and void.

National collective agreement for the retail and wholesale food trade

Soc. July 7, 2015 (No. 13-26.773) FS-PB:

The national collective bargaining agreement for the food retail and wholesale sector of July 12, 2001, stipulates that a paid break is granted at a rate of 5% of actual working time. The Court of Cassation has ruled that, in the absence of a specific provision, break time must be paid at the basic hourly rate.

Exercising the right to strike

Soc. June 30, 2015 (No. 14-11.077) F-PB:

An employee, along with seven other employees, went on strike, demanding payment of an advance on their thirteenth-month bonus, and was subsequently dismissed for serious misconduct. The Court of Appeal upheld the dismissal as justified by serious misconduct. According to the court, the employer had been kept in the dark about the reasons for the work stoppage—namely, the payment of an advance on the thirteenth-month bonus—and had only learned of this demand by asking the employees why they were blocking the company's entrances. The court concluded that the employee who initiated the strike could not claim the protection afforded by the right to strike.
The Court of Cassation dismissed the employee's appeal. In support of its decision, the Court clarified that the normal exercise of the right to strike is not subject to any prior notice, unless otherwise stipulated by law; it requires only the existence of collective professional demands of which the employer must be aware at the time of the work stoppage, regardless of how this information was obtained.

Appointment of union representatives

Soc. July 8, 2015 (No. 14-60.691) FS-PB:

The Court of Cassation clarifies that, according to Article L. 2143-3 of the French Labor Code, a union representative may be appointed when the workforce has reached fifty or more employees for twelve months, consecutive or not, during the preceding three years. Since Article L. 2142-1-1 of the Labor Code makes the appointment of a union branch representative subject to the same requirement of a workforce of fifty or more employees, the conditions of Article L. 2143-3 concerning the duration and period during which this threshold must be met also apply to the appointment of a union branch representative.

Dispute concerning the appointment of union representatives

Soc. July 8, 2015 (No. 14-60.726) FS-PB:

A union, representative at the company level, had appointed a union representative to the departmental economic and professional committee (CDEP) of an establishment where it was not representative. The employer then appealed to the local court to have this appointment annulled. The lower court judges found that the union, although representative at the company level, was not representative at the establishment level because it had not obtained at least 10% of the votes in the election of the works council members, and ruled that this union could not appoint a representative to the works council.

The Court of Cassation notes that it follows from Article L. 2324-2 of the Labour Code in its wording resulting from Law No. 2014-288 of 5 March 2014, that only trade union organisations which have obtained, within the scope of this committee, at least 10% of the votes cast during the last professional elections may appoint a trade union representative to the works council or establishment committee, and dismisses the appeal.