Newsletter n° 27 – Employment law – November 2015

Newsletter n° 27 – Employment law – November 2015

Collective agreements

Summary

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

JURISPRUDENCE

CONTRACT AND EXECUTION OF THE EMPLOYMENT CONTRACT
Fixed-
Absence of term
Contractual elements
Travel time of employees
Determination of the law applicable to the contract
Language used in the documents
Requalification of the contract
Example of requalification
No compensation
Hidden work
Solidarity
Application of a wrongful working days
Invalidity
Obligation of the employer
TERMINATION OF THE EMPLOYMENT CONTRACT Termination
by agreement
Error relating to the date of termination and the amount of the indemnity
Dismissal
Delegation of the power to dismiss
Serious misconduct by the employee

Pregnancy Scope of protection
Economic dismissal
Terms of compensation
COLLECTIVE RELATIONS Collective
agreements
Nullity of the working day
Compensation for break time
Right to strike
Exercise of the right to strike
Representation of employees
Methods of designation
Contestation of designation

Collective agreements

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

The provisions of amendment no. 20 of January 21, 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 labor code which provide that the annual negotiation on wages also aims to define and program the measures making it possible to eliminate the differences in remuneration between women and men, are made compulsory for all employers and all employees included in the scope of application of the national collective agreement of architecture, town planning and environment councils of 24 May 2007.

Case law

Fixed-term contract: no term

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

In order to reject the claim for compensation for wrongful termination of the fixed-term contract, the appeal ruling held that this contract specified that it had been drawn up with a view to the partial and temporary replacement of an employee, who was absent, for partial replacement and temporary transfer of another employee by shifting the position of the first employee to the position of the second, absent due to illness.
According to the Court of Appeal, the event constituting the term of the fixed-term contract without a specific term was the return of the displaced employee to his post, and not that of the sick employee to his. Pursuant to Article L.1242-7 of the Labor Code, the Court of Cassation quashes the appeal decision and recalls that the fixed-term employment contract concluded to replace an absent employee does not include a specific term, ends at the end of the absence of the replaced employee. Consequently, the contract could only end on the return of the employee whose absence had constituted the reason for recourse to such a contract, regardless of the replacement by slippage made by the employer.

Travel time of employees without a fixed place of work

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 attached all its employees to the central office in Madrid.
Technicians, installing and maintaining security devices in homes and in industrial and commercial premises located in a territorial area, corresponding to a province or even several, do not have a fixed place of work. In addition, the workers each have a company vehicle to travel from their home to the various workplaces every day and to return home at the end of the day. Since the employer counts the "home-customer" travel time not as working time but as rest time, the question is therefore raised as to whether travel time at the start and end of the day should be considered as working time within the meaning of Directive 2003/88/EC.
The Court of Justice states that, where workers, such as those in the situation at issue, have no fixed or usual place of work, the travel time which these workers devote to daily journeys between their home and the sites of the first and the last client designated by their employer constitutes working time within the meaning of the directive.

Determination of the law applicable to the contract

Soc. July 9, 2015 (n°14-13.497) FS-PB:

An employee had been hired on a part-time basis as program director by a foundation.
About three years later, she had also concluded with the owner of the foundation, an employment contract to occupy the functions of private secretary in charge of the exhibitions. Both contracts stipulated that they were governed, the first by Spanish law, the second by Belgian law. Having been dismissed both by the foundation, due to the impossibility of maintaining her job in Paris, and by the owner, the employee had seized the industrial tribunal in order to obtain payment of various sums in respect of the breach of employment contracts, as overtime, as compensation for concealed work and compensation for his pension loss, by taking advantage of the provisions of French law. To exclude the application of French law to the claims made by the employee both against the foundation and the owner of the foundation, 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 ruling. In support of its decision, it notes firstly that the usual place of performance of the work was in France and secondly that the Court of Appeal had not investigated whether the provisions of Belgian law and Spanish language chosen by the parties and relating to the different heads of the employee's claims, were more protective than the mandatory provisions of French law which would have been applicable in the absence of these choices.

Documents with obligations for the employee in a foreign language

Soc. June 24, 2015 (n°14-13.829) FS-PB:

Article L.1321-6 of the Labor Code, under the terms of 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. documents received from abroad or intended for foreigners.

Requalification of the employment contract

Soc. June 24, 2015 (n°13-26.631) FS-PB:

An employee in the audiovisual sector, a sector in which the use of a standard fixed-term contract is authorized, having concluded five hundred and eighty-nine fixed-term contracts over a period of nine years with the same company, seized the labor court of claims relating both to the performance of the contractual relationship and to the termination thereof.
The Court of Appeal noted that the employee had been employed for nine years to fulfill the same function and deduced that these contracts had been intended to permanently fill a job related to the normal and permanent activity of the company. The Court of Cassation repeated the reasoning of the appeal ruling pronouncing the requalification of the contracts and dismissed the appeal.

No precariousness allowance in the event of requalification from CDD to CDI

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

In this judgment, the Court of Cassation recalls that the precariousness allowance provided for in Article L. 1243-8 of the Labor Code, which compensates, for the employee, the situation in which he is placed because of his contract at fixed term, is not due when the contractual relationship continues in an open-ended contract, in particular in the event of requalification of a fixed-term employment contract.

Solidarity in concealed work

C.constitute, decision n° 2015-479 QPC of July 31, 2015:

The applicant company challenged the constitutionality of the provisions relating to the solidarity of the principal in the event of recourse to concealed work by his co-contracting party.
The Constitutional Council noted in particular that the solidarity instituted by Article L. 8222-2 of the Labor Code mainly constitutes a guarantee for the recovery of debts to the Public Treasury and social protection bodies and rejected all the grievances raised by the applicant.

Intentional element in concealed work

Criminal. June 16, 2015 (n°14-16.953) F-PB:

The Criminal Division specifies here that the intentional nature cannot be deduced from the mere application by the employer of an illegal package agreement.
In this case, the employer was ordered by the Court of Appeal to pay the employee a lump sum compensation for concealed work. In fact, according to the judgment, the intentional element of concealed work was established as a result of the combined intentional application of several incompatible regimes and, in any event, contrary to the public order provisions of labor law, the company agreement invoked being unlawful in that it provided for a number of annual hours exceeding the legal ceiling of 1607 hours.

Invalidity: methods of compensation 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 from February 22, 2002, recognized as disabled on January 11, 2005 from January 1 and retired at the age of sixty on February 28, 2010 had seized the industrial tribunal on June 20 2003 of various requests.
This employee contests the decision of the Court of Appeal rejecting his request for back pay as of January 1, 2005 and alternatively for damages due to the absence of a second incapacity visit. The Court of Cassation then specified that if the employer who refrains, after the first resumption medical examination, from having the occupational physician carry out the second of the examinations required by Article R. 241-51-1 of the Code which became article R. 4624-31 commits a fault, it is up to the trial judges in this case to allocate to the employee not the payment of wages on the basis of article L. 1226-4 of the code of inapplicable work but compensation for the damage actually suffered.

Contractual termination

Soc. July 8, 2015 (n°14-10.139) FS-PB:

Following two refusals to approve a severance agreement, the parties signed on July 26, 2010 a third employment contract agreement setting the date of termination as August 6, 2010. The termination was approved by the authority administrative on August 9, 2010. To dismiss the employee of all of his claims relating to the termination of the employment contract, the judgment retains, on the one hand, that various bonuses that may have been omitted within the framework of the termination agreement of August 2010, it was appropriate to give notice to the employer that he would be liable for a sum as additional compensation for contractual termination.
The court also underlined that the form approved on August 9, 2010 maintaining the break on August 6, 2010, there was reason to give notice to this employer that he was going to regularize the break on August 10, 2010, the day after the date of approval. The Court of Cassation overturns the appeal judgment. According to the Court, if the stipulation by the two parties of an indemnity whose amount is lower than that provided for by article L. 1237-13 of the labor code and if the common error of date fixed by the parties prior to the day after the approval do not in themselves entail the nullity of the termination agreement, it was up to the Court of Appeal, seized of requests for annulment and payment of sums, to rectify the date of the termination and to proceed, in the event of an insufficient amount of the conventional termination indemnity, to a pecuniary condemnation.

Delegation of power to dismiss

Soc. June 30, 2015 (n°13-28.146) FS-PB:

In this case, the widow of an employee dismissed for serious misconduct objected to the appeal ruling that the dismissal was based on serious misconduct.
In support of her appeal, she raised that a person outside a company cannot receive a mandate for the purpose of dismissing the employees of this company. According to the Court of Cassation, the Court of Appeal had found that the signatory of the dismissal letter held the position of financial director of the company which owned 100% of the employer's shares and that he had signed the letter by delegation of the legal representative of the latter company. The Court of Appeal therefore rightly held that he was not a person outside the company.

The refusal of the employee to return to his position at the end of the secondment is a serious fault

Soc. June 24, 2015 (n°13-25.522) FS-PB:

An employee seconded to Reunion, on the very day of his recruitment for a period of two years and finally recalled to Nanterre after four years, had not joined his new assignment and had been dismissed for serious misconduct.
The employee seized the industrial tribunal and was dismissed by the Court of Appeal. The Court of Appeal had in fact considered that the missions entrusted to the employee during his secondment and at the end of it corresponded to his responsibilities and functions as administrative and financial manager, and decided that the reinstatement of the interested in a job in the Paris region, which did not result from the implementation of a geographical mobility clause, but from the term of the secondment, did not constitute a modification of the employment contract requiring his agreement. The Court of Cassation dismissed the appeal lodged against the appeal judgment and confirmed that the employee's deliberate and repeated refusal to join, at the end of his secondment period, the agency, which had been jointly chosen agreement between the parties at the time of hiring, constituted serious misconduct making it impossible for him to remain in the company.

Scope of the protection of the employee in a state of pregnancy

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 during which she returned to work, was dismissed on September 11, 2008 due to persistent differences of opinion on the company's human resources policy.
The employee who intended to avail herself of the benefit of the protection resulting from the pregnancy to have her dismissal declared null and void then seized the labor court. Her request was dismissed insofar as the sick leave did not mention a pathological condition linked to maternity. The Court of Cassation confirms the appeal ruling. 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 then being postponed to the date of the employee's return to work , the same does not apply in the event of sick leave.

Terms of compensation during a dismissal for economic reasons

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

The Court of Appeal condemned an employer to pay damages to one of his former employees because of the unequal treatment to which she had been subjected in the implementation of a plan to safeguard employment.
In this case, the employee had refused an early cessation of activity measure and the employment safeguard plan provided that, as a result, the benefits she enjoyed were less important than those of the other dismissed employees who did not fulfill not the conditions for claiming an early departure. According to the Court of Appeal, this difference in treatment could not be justified by the sole fact of encouraging employees aged at least 55 to accept an early cessation of activity. The Court of Cassation specifies that if an employment protection plan can contain measures reserved for certain employees, it is on the condition that all the employees of the company placed in an identical situation with regard to the advantage in cause may benefit from this advantage, unless a difference in treatment is justified by objective and relevant reasons and the rules determining the conditions for granting this advantage are defined and verifiable beforehand. Consequently, the Court dismisses the appeal lodged against the appeal judgment.

National collective agreement for hotels, cafes, restaurants: invalidity of the day pass

Soc. July 7, 2015 (n°13-26.444) FS-PB:

The general housekeeper of a hotel, whose activity fell under the national collective agreement for hotels, cafes and restaurants, was dismissed for professional incompetence.
The employee then seized the industrial tribunal. The Court of Appeal dismissed the employee's requests for back pay for overtime, damages for compensatory rest not taken. To this end, the judgment held that the employment contract stipulated that the employee benefited from the status of executive on a fixed daily basis. According to the Court of Cassation, neither the provisions of article 13. 2 of amendment no. 1 of July 13, 2004 relating to the duration and organization of working time, paid leave, night work and foresight to the national collective agreement for hotels, cafes, restaurants of April 30, 1997, which, in the case of a flat rate in days, is limited to providing, with regard to the workload and the amplitude of the work of the employee concerned , firstly, that the employer establishes a monthly breakdown of the days worked, the number of rest days taken and those remaining to be taken in order to allow monitoring of the organization of work, secondly, that the person concerned benefits from the minimum daily rest provided for by the collective agreement and the weekly rest, nor the stipulations of the company agreement of 19 May 2000, which only provide for the obligation to respect the legal limits of the daily working time and that an annual meeting between the person concerned and his superior hierarchy relating to the organization of work and the length of the working days, are not such as to guarantee that the length and the workload remain reasonable and ensure a good distribution, over time, of the work of the person concerned , and, therefore, to ensure the protection of the safety and health of the employee. Consequently, the Court of Appeal should have deduced that the stipulations of the employment contract relating to the fixed price in days were null.

National collective agreement for the retail and wholesale trade predominantly in food

Soc. July 7, 2015 (n°13-26.773) FS-PB:

The national collective agreement of July 12, 2001 for the retail and wholesale trade with food predominance provides that a paid break is allocated at the rate of 5% of effective working time. The Court of Cassation rules that, in the absence of precision, the break time must be paid at the basic hourly rate.

Exercise of the right to strike

Soc. June 30, 2015 (n°14-11.077) F-PB:

An employee had ceased work with seven other employees, claiming the payment of a deposit on the thirteenth month and then had been dismissed for serious misconduct.
The Court of Appeal considered that the dismissal was based on serious misconduct. According to the court, the employer had been kept in the dark about the reasons for the stoppage of work, namely the payment of a deposit on the thirteenth month, and had only been informed of this claim by asking the interested in the reasons for the blocking of the doors of the enterprise. The court deduced from this that the employee initiating these facts could not avail himself of the protection attached to the right to strike. The Court of Cassation dismissed the appeal filed by the employee. In support of its decision, the Court specifies that the normal exercise of the right to strike not being subject to any notice, except for legislative provisions providing for it, it only requires the existence of collective professional demands of which the employer must be aware. at the time of the work stoppage, the terms of this information are of little importance.

Appointment of union representatives

Soc. July 8, 2015 (n°14-60.691) FS-PB:

The Court of Cassation specifies that under the terms of Article L. 2143-3 of the Labor Code, the appointment of a union representative may take place when the number of employees of fifty or more has been reached for twelve months, consecutive or no, in the previous three years. Since Article L. 2142-1-1 of the Labor Code makes the appointment of a union section representative subject to the same requirement of a workforce of fifty or more employees, the conditions of Article L. 2143 -3 relating to the duration and the period during which this threshold must be reached also apply to the designation of a union branch representative.

Dispute relating to the appointment of union representatives

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

A union, representative at company level, had appointed a union representative to the departmental economic and professional committee (CDEP) of an establishment in which it is not representative. The employer then seized the district court to have this appointment set aside. The trial judges found that the union, although representative at company level, was not representative at plant level for not having won at least 10% of the votes during the election of the members of the works council, and decided that union could not appoint a representative on the works council.

The Court of Cassation notes that it follows from Article L. 2324-2 of the Labor Code in its wording resulting from Law No. 2014-288 of March 5, 2014, that only a trade union representative can be appointed to the company or establishment, the trade union organizations which received, within the scope of this committee, at least 10% of the votes cast during the last professional elections and rejects the appeal.