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 day passes:
National collective construction
agreement Collective agreement for the retail and wholesale trade predominantly in food
… of January 27, 2015 Equal treatment: Difference in benefits between professional categories Within the same professional category
… of December 17, 2014 Obligation to set up a CHSCT
… of January 21, 2015 Effect of the termination of the employer's activity on the non-competition clause
… of January 21, 2015
Terms
waiver of the non-competition clause … of February 4, 2015
Obligation to provide work by the employer and objective clause
REGULATIONS
Generation contracts
Created by the law of March 1, 2013 1 , the generation contract is a device, applicable in companies with less than 300 employees, intended to promote the employment of young people under 26 and seniors aged at least 55 , by granting aid to the employer who uses it.
The decree of March 3, 2015, which entered into force on March 6, 2015, modifies certain regulatory provisions applicable to this system in order to facilitate access to it.
In this respect, the decree abolishes the obligation for companies employing between 50 and 300 employees, covered by a branch agreement, to transmit a diagnosis on the employment of the elderly to the DIRECCTE.
The agreements and action plans relating to the generation contract, which must be negotiated before March 31, 2015, must be subject to a compliance check by the DIRECCTE.
The decree provides that in the absence of notification of a compliance decision within three weeks for an agreement and six weeks for an action plan, the agreement or the action plan is tacitly deemed to be in compliance. Finally, the system is extended to include young people recruited using a permanent apprenticeship contract.
National collective agreement for automotive services: part-time
The employment security law2 notably imposed a minimum weekly working time of 24 hours in the event of recourse to part-time work.
Amendment No. 69 of July 3, 2014 to the National Collective Agreement for Automotive Services organizes the use of part-time work in companies covered by this agreement (IDCC 1090).
The decree of December 29, 2014 extends to all employers and all employees, except employees receiving an old-age pension or employed in a company with fewer than eleven employees, included in the scope of the collective agreement automobile services of January 15, 1981, the provisions of amendment no. 69 of July 3, 2014 relating to part-time work, concluded within the framework of the collective agreement.
JURISPRUDENCE
Day pass invalidations
Soc. December 17, 2014 (n°13-23.230) FS-PB:
The Court of Cassation confirms the decision of the Court of Appeal which invalidates the mechanism for recourse to the fixed daily rate provided for by the national collective agreement for the building industry (IDCC 1596).
Indeed, the national professional agreement which provides only that the employment contract must allow the employees concerned freedom in the organization of part of their working time is not such as to ensure the protection of safety and the health of the employee subject to the plan of the fixed rate in days.
In addition, the court specifies that the methods of implementation of the day package cannot be fixed by a memorandum.
Soc. February 4, 2015 (n°13-20.891) FS-PB:
The provisions of the collective agreement for the retail and wholesale trade predominantly in food (IDCC 2216), relating to the fixed rate in days, provide, with regard to monitoring the workload and the amplitude of the work of the employee concerned, an interview annually with the line manager.
The provisions of the company agreement provide for the organization of the activity of the employees concerned over five days, so that they can effectively exercise their right to weekly rest and the establishment of a document summarizing their presence on the 'year. According to the Court of Cassation, these provisions are not such as to guarantee that the scope and workload remain reasonable and ensure a good distribution, over time, of the work of the person concerned. These provisions do not contribute to ensuring the protection of the safety and health of the employee. As a result, the fixed-rate agreement in days is void.
1 Law No. 2013-185 of March 1, 2013 creating the generation contract
2 Law no. 2013-504 of June 14, 2013 on job security
Equal treatment
Difference of benefit between professional categories
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Soc. January 27, 2015 (n°13-22.179) FS-PBRI:
The Court restricts the scope of its case-law3, according to which the principle of equal treatment precludes differences in treatment between professional categories, unless these differences are based on objectives.
The position of the Court is now as follows: "the differences in treatment between professional categories operated by means of conventions or collective agreements, negotiated and signed by representative trade unions, vested with the defense of the rights and interests of employees and the empowerment of which the latter participate directly by their vote, are presumed to be justified so that it is up to the person who contests them to demonstrate that they are unrelated to any consideration of a professional nature”.
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Within the same professional category
Soc. January 27, 2015 (n°13-17.622) FS-PB:
In this case, a mutual company employed employees in the same category with different legal statuses.
These schemes were then harmonized but some employees went to the industrial tribunal to obtain the payment of damages to compensate for the loss resulting from the difference in treatment from the date of their hiring until the date of harmonization of regimes. The Court of Cassation overturned the judgment of the Court of Appeal rejecting their request. In its decision, the Court of Cassation specifies on the one hand that "for the attribution of a particular advantage, a difference in legal status between employees placed in a comparable situation with regard to the said advantage, is not sufficient, on its own , to exclude the application of the principle of equal treatment, on the other hand, that it is up to the employer to demonstrate that the difference in treatment between employees placed in the same situation with regard to the disputed advantage, is based on objective reasons, the reality and relevance of which the judge must verify”.
Obligation to set up a CHSCT
Soc. December 17, 2014 (n°14-80.532) F-PBI:
The Court of Cassation recalls that any employee employed by a company whose workforce is at least equal to fifty employees must report to a CHSCT.
Consequently, the decision of the company employing approximately one hundred and forty employees spread over seven sites to set up a CHSCT only on one of these sites, the only one employing more than fifty employees, is irregular.
Effect of the termination of the employer's activity on the non-competition clause
Soc. January 21, 2015 (n°13-26.374) FS-PB:
In this case, the employment contract included a non-competition clause for a period of three years in return for which the applicant received compensation after the effective termination of her contract.
The contract was terminated on April 20, 2011 and the employee requested payment of the financial consideration for the non-competition obligation calculated over three years. The Court of Appeal notes that the employer was the subject of a judicial liquidation judgment on September 27, 2011 and dismisses the employee on the grounds that she is no longer bound by any obligation of non-competition at the towards a company that no longer exists.
The social chamber breaks the judgment. Indeed, according to the Court of Cassation, the non-competition clause taking effect from the termination of the employment contract, the subsequent cessation of activity of the employer does not have the effect of relieving the employee of his obligation of non-competition.
3 Soc. June 8, 2011 (n°10-14.725) FS-PBRI and (n° 10-11.933) FS-PBRI
Terms of waiver of the non-competition clause
Soc. January 21, 2015 (n°13-24.471) FS-PB:
In the event of termination of the employment contract with dispensation from the performance of the notice, the date from which the latter is required to comply with the non-competition obligation, the date of payment of the financial consideration of the non-competition and the date from which the reference period must be determined for the calculation of this indemnity are those of the effective departure from the company.
Consequently, the employer who exempts the employee from the execution of his notice must, if he intends to waive the execution of the non-competition clause, do so at the latest on the date of the effective departure from the company's interested party, notwithstanding any stipulations or provisions to the contrary.
Wage portage: obligation to provide work by the employer and objective clause
Soc. February 4, 2105 (n°13-25.627) FS-PB:
An employee, dismissed on the grounds that he had not complied with the objective clause of his employment contract which required him to conclude before the end of his current assignment one or more new assignments equivalent to five days, seized labor court jurisdiction.
The employer contests before the Court of Cassation its order to pay the employee sums by way of back pay, paid leave, severance pay and severance pay without real and serious cause.
The Court of Cassation dismissed the appeal on the grounds that the conclusion of an employment contract entails for the employer an obligation to supply the work.
