Summary
REGULATIONS
Generation Contract
Decree of March 3, 2015
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National Collective Agreement for Automotive Services Order of December 29, 2014
JURISPRUDENCE
… of December 17, 2014 and February 4, 2015
Invalidation of fixed-day work arrangements:
National Collective Bargaining Agreement for the Building Industry
Collective Bargaining Agreement for the Retail and Wholesale Food Trade
… of January 27, 2015 Equal Treatment: Difference in benefits between professional categories Within the same professional category
… of December 17, 2014 Obligation to establish a Health, Safety and Working Conditions Committee (CHSCT
) … of January 21, 2015 Effect of the employer's cessation of activity on the non-compete clause
… of January 21, 2015
Procedures for waiving the non-compete clause
… of February 4, 2015
Obligation of the employer to provide work and performance-based clause
REGULATIONS
Generation contracts
Created by the law of March 1, 2013 , the generational contract is a scheme, applicable to companies with fewer than 300 employees, designed to promote the employment of young people under 26 and seniors aged 55 and over, by providing subsidies to employers who implement it.
The decree of March 3, 2015, which came into force on March 6, 2015, modifies certain regulatory provisions applicable to this scheme in order to facilitate access to it.
In this regard, the decree removes the obligation for companies employing between 50 and 300 employees, covered by a sectoral agreement, to submit an assessment of the employment of older workers to the Regional Directorate for Labor, Employment and Vocational Training (DIRECCTE).
Agreements and action plans relating to the generational contract, which must be negotiated before March 31, 2015, are subject to a compliance review by the DIRECCTE. The decree stipulates that if a compliance decision is not notified within three weeks for an agreement and six weeks for an action plan, the agreement or action plan is tacitly deemed compliant.
Finally, the scheme is extended to include young people recruited through open-ended apprenticeship contracts.
National collective agreement for automotive services: part-time
The Employment Security Act² notably imposed a minimum weekly working time of 24 hours for part-time work.
Amendment No. 69 of July 3, 2014, to the National Collective Bargaining Agreement for Automotive Services governs the use of part-time work in companies covered by this agreement (IDCC 1090).
The decree of December 29, 2014, extends the provisions of Amendment No. 69 of July 3, 2014, concerning part-time work, concluded within the framework of the collective bargaining agreement, to all employers and employees, except those receiving an old-age pension or employed in a company with fewer than eleven employees, covered by the National Collective Bargaining Agreement for Automotive Services of January 15, 1981.
JURISPRUDENCE
Invalidations of day passes
Soc. 17 December 2014 (No. 13-23.230) FS-PB:
The Court of Cassation has upheld the Court of Appeal's decision invalidating the system of using fixed-day work arrangements provided for in the national collective bargaining agreement for the construction industry (IDCC 1596).
Indeed, the national professional agreement, which only stipulates that the employment contract must allow employees concerned some flexibility in organizing part of their working time, is insufficient to ensure the safety and health of employees subject to the fixed-day work arrangement.
Furthermore, the court clarified that the implementation procedures for the fixed-day work arrangement cannot be established by an internal memo.
Soc. February 4, 2015 (No. 13-20.891) FS-PB:
The provisions of the collective bargaining agreement for the food retail and wholesale sector (IDCC 2216), concerning the annual work schedule based on days worked, stipulate an annual meeting with the line manager regarding the monitoring of the workload and working hours of the employee concerned. The provisions of the company agreement provide for the organization of the employees' work over five days, so that they can effectively exercise their right to weekly rest, and for the creation of a document summarizing their attendance over the year.
According to the Court of Cassation, these provisions are insufficient to guarantee that the workload and working hours remain reasonable and ensure a proper distribution of the employee's work over time. These provisions do not contribute to ensuring the protection of the employee's safety and health. Consequently, the annual work schedule based on days worked is null and void.
1 Law No. 2013-185 of 1 March 2013 establishing the generation contract
2 Law No. 2013-504 of 14 June 2013 on securing employment
Equal treatment
Difference of benefit between professional categories
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Soc. 27 January 2015 (No. 13-22.179) FS-PBRI:
The Court has narrowed the scope of its case law³, according to which the principle of equal treatment precludes differences in treatment between professional categories, unless such differences are based on objective reasons.
The Court's position is now as follows: "Differences in treatment between professional categories established by collective agreements or contracts, negotiated and signed by representative trade unions, entrusted with defending the rights and interests of employees and whose legitimacy is directly conferred upon them by the employees through their vote, are presumed to be justified, such that the burden of proof lies with the party challenging them to demonstrate that they are unrelated to any professional considerations."
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Within the same professional category
Soc. 27 January 2015 (No. 13-17.622) FS-PB:
In this case, a mutual insurance company employed employees in the same category but with different legal statuses. These plans were subsequently harmonized, but some employees brought their case before the labor court seeking damages for the harm resulting from the difference in treatment from their hiring date until the date of plan harmonization.
The Court of Cassation overturned the Court of Appeal's decision dismissing their claim. In its ruling, the Court of Cassation clarified, firstly, that "for the granting of a specific benefit, a difference in legal status between employees in a comparable situation with regard to said benefit is not, in itself, sufficient to preclude the application of the principle of equal treatment; secondly, that it is incumbent upon the employer to demonstrate that the difference in treatment between employees in the same situation with regard to the disputed benefit is based on objective reasons, the reality and relevance of which must be verified by the judge."
Obligation to establish a CHSCT
Soc. 17 December 2014 (No. 14-80.532) F-PBI:
The Court of Cassation reiterates that all employees of a company with at least fifty employees must be covered by a Health, Safety and Working Conditions Committee (CHSCT).
Consequently, the decision by the company, employing approximately one hundred and forty employees across seven sites, to establish a CHSCT at only one of these sites—the only one with more than fifty employees—is unlawful.
Effect of the employer's cessation of business on the non-compete clause
Soc. 21 January 2015 (No. 13-26.374) FS-PB:
In this case, the employment contract contained a three-year non-compete clause, in return for which the employee received compensation upon the termination of her contract. The contract was terminated on April 20, 2011, and the employee sought payment of the financial compensation for the three-year non-compete obligation.
The Court of Appeal noted that the employer had been placed into liquidation on September 27, 2011, and dismissed the employee's claim on the grounds that she was no longer bound by any non-compete obligation with respect to a company that no longer existed.
The Social Chamber of the Court of Cassation overturned the judgment. Indeed, according to the Court of Cassation, since the non-compete clause took effect upon the termination of the employment contract, the subsequent cessation of the employer's business did not release the employee from her non-compete obligation.
3 Soc. June 8, 2011 (No. 10-14.725) FS-PBRI and (No. 10-11.933) FS-PBRI
Terms and conditions for waiving the non-competition clause
Soc. 21 January 2015 (No. 13-24.471) FS-PB:
In the event of termination of the employment contract with a waiver of the notice period, the date from which the employee is bound by the non-compete obligation, the date on which the financial compensation for the non-compete clause becomes due, and the date from which the reference period for calculating this compensation is determined are all the dates of the employee's actual departure from the company.
Therefore, an employer who waives the employee's notice period must, if they intend to waive the non-compete clause, do so no later than the employee's actual departure date from the company, notwithstanding any conflicting stipulations or provisions.
Umbrella company services: obligation for the employer to provide work and performance-based clauses
Soc. February 4, 2105 (No. 13-25.627) FS-PB:
An employee, dismissed for failing to meet the performance-based clause of his employment contract—which required him to complete one or more new assignments equivalent to five days of work before the end of his current assignment—filed a claim with the labor court.
The employer appealed to the Court of Cassation, challenging the court's decision to pay the employee sums for back wages, accrued vacation pay, severance pay, and compensation for unfair dismissal.
The Court of Cassation rejected the appeal, ruling that the conclusion of an employment contract entails an obligation for the employer to provide work.
