Summary
LEGISLATIVE AND REGULATORY NEWS
Work of minors in vocational training: Exemption for prohibited work
Decree No. 2015-443 of April 17, 2015
Professional security contract
Order of April 16, 2015
JURISPRUDENCE
CONTRACT AND EXECUTION OF THE EMPLOYMENT CONTRACT
Non-competition clause
Reduction of the consideration according to the mode of breach of the contract
Fixed-term contract The increase in seasonal activity as a reason for resorting to the contract
TERMINATION OF THE EMPLOYMENT CONTRACT
Nullity of the dismissal of the protected employee Refusal of the employee to return to his position and ceiling of the indemnity
Protected employee Ceiling of the indemnity in the event of justified action
Transfer of the employment contract of a protected employee Notification of the protection to the new employer
Failure mode
Guarantee of use: impact of the failure mode
COLLECTIVE RELATIONS
Compulsory display Display and control of working hours
Professional elections
Consequences of the cancellation of the elections of DPs and members of the Works Council on the designation of the CHSCT
Economic and social unit
Example of recognition of an UES
LEGISLATIVE AND REGULATORY NEWS
Child labor
Under the terms of article L. 4153-8 of the Labor Code, workers aged at least 15 under the age of 18 cannot be employed to carry out certain categories of work exposing them to risks for their health, their safety , their morality or exceeding their strength.
This particularly concerns work at height involving trees, work requiring exposure to very high temperatures. Young people in training can, however, benefit from an exemption for the least dangerous prohibited work.
A decree of April 17, 20151 modifies this derogatory regime. From now on, it is no longer necessary to obtain an authorization from the labor inspector. The employer or the head of the establishment only has to send him a declaration. The derogation is valid for a period of three years from the date of dispatch of the declaration and must be renewed if necessary at the end of these three years (R.4153-44 of the Labor Code). It is therefore advisable to use a method of sending to justify this date. The declaration must contain the following elements (Art. R. 4153-41 of the Labor Code):
- The sector of activity of the company or establishment;
- Professional training provided;
- The different known places of training;
- Prohibited work liable to derogation necessary for vocational training and to which the declaration of derogation relates, as well as, where applicable, the machines the use of which by young people is required to carry out this work and, in the event of the performance of maintenance work, the work in question and the work equipment;
- The quality or function of the competent person(s) responsible for supervising the young people during the execution of the aforementioned work.
In the event of modification, of the first two elements or of the fourth mentioned above, these are updated and communicated to the labor inspector by any means conferring a certain date within eight days of the changes having occurred (Art. R.4153-42 of the Labor Code).
In case of modification of the other information mentioned in the declaration, these must be kept at the disposal of the labor inspector. Finally, the employer or the head of the establishment who declares an exception makes available to the labor inspector, from the time each young person is assigned to the work in question, the information relating to (Art. R.4153-45 of the Labor Code) :
- The first names, surname and date of birth of the young person;
- The professional training followed, its duration and the known places of training;
- A medical opinion of fitness to carry out this work;
- To the information and safety training provided for in Articles L. 4141-1 to L. 4141-3, provided to the young person;
- The first names, surname, and quality or function of the competent person or persons responsible for supervising the young person during the execution of the work in question.
Professional security contract
On January 26, 2015, the social partners signed a new agreement with the State under the terms of which the system of the professional security contract was renewed until December 31, 2016 despite some modifications. This agreement was the subject of an approval order from the Ministry of Labor on April 15, 2015.
JURISPRUDENCE
Reduction of the non-competition clause according to the mode of breach of the contract
Soc. April 9, 2015 (n°13-25.847) FS-PB:
In this case, the employment contract provided for a non-competition clause in return for financial compensation set at 25% of the average remuneration received over the last twenty-four months in the event of dismissal and 10% in the event of resignation. .
1 Decree No. 2015-443 of April 17, 2015 relating to the derogation procedure provided for in Article L. 4153-9 of the Labor Code for young people under the age of eighteen
The parties having signed a termination agreement, the employee seized the industrial tribunal, asking in particular for the payment of the financial consideration for the non-competition clause.
The Court of Appeal had held that the employee who resigns and the one who signs a contractual termination both show the same intention to leave the company and then set the financial consideration for the non-competition clause at the amount provided in the event of resignation. The Court of Cassation on the contrary underlined that the reduction by the parties, in the case of a determined mode of termination of the employment contract, of the pecuniary counterpart of a non-competition clause must be deemed unwritten.
Consequently, the Court of Cassation considered that the Court of Appeal, which refused to apply the 25% consideration, which is not subject to reduction by the judge and gives right to paid leave, violated the article L.1121-1 of the Labor Code and the fundamental principle of free exercise of a professional activity. It is therefore not possible to vary the amount of the financial consideration for the non-compete obligation depending on the mode of termination.
Reason for recourse to the fixed-term contract
Soc. March 25, 2015 (No. 13-27.695) FS-PB:
An employee was hired on a fixed-term contract for a period of three months to compensate for a temporary increase in activity resulting from an order. It was provided that the contract could be renewed for an equal or longer period not exceeding eighteen months in total. During a stoppage following a work accident, the employer informed the employee that his contract would end on the date initially scheduled. The employee then seized the industrial tribunal in order to obtain the requalification of his fixed-term employment contract into a contract of indefinite duration. In support of his request, the employee notably invoked the fact that his contract was concluded with the aim of filling a job corresponding to the normal activity of the company and therefore had to be requalified.
The Court of Appeal rejected the request for requalification on the basis of the existence of a seasonal need.
The Court of Cassation dismissed the employee's appeal. According to the Court, "after noting that the employment contract had been concluded (…) for the purpose of coping with a temporary increase in activity and that the employer carried out the usual activity of handling tires, the Court of appeal, which noted the existence, even if linked to additional production adapted to winter, of an increase in activity during the period for which the contract had been concluded, has, without changing the subject of the dispute , legally justified its decision”.
Refusal of the employee whose dismissal is void to return to his position and ceiling of the indemnity
Soc. April 15, 2015 (n°13-24.182) FS-PBR:
An employee, a substitute staff representative, was declared permanently unfit for her position and then dismissed for incapacity and the impossibility of redeployment without the employer having sought the authorization of the labor inspector.
The employee seized the industrial tribunal to have her dismissal annulled. The Court of Appeal granted the employee's request and ordered the employer to pay the employee compensation corresponding to the remuneration she would have received until the expiry of the protection period, i.e. forty month's pay. The employer then contested this conviction on the grounds that the employee whose dismissal is void and who refuses reinstatement waives the right to claim the nullity of the termination. The Court of Cassation partially overturns the judgment.
It first recalls that the employee whose dismissal is void may refuse the reinstatement proposed by the employer without this resulting in a waiver of the right to claim the nullity of the termination. On the other hand, the Court annuls the condemnation of the employer to pay an indemnity corresponding to forty months of remuneration. According to the Court of Cassation, the staff representative who does not request the continuation of the illegally terminated employment contract is entitled to compensation for violation of the protective status equal to the remuneration he would have received from his dismissal until the expiry the period of protection, within the limit of two years, the minimum legal duration of his mandate, increased by six months. The allowance is therefore capped at 30 months' salary, although the 2005 law increased the term of office from 2 to 4 years.
Act of the protected employee: amount of the indemnity
Soc. April 15, 2015 (n°13-27.211) FS-PBR:
An employee who had been called to a preliminary interview was elected staff representative.
The authorization for dismissal having been refused, the employee finally took note of the breach of the contract and seized the labor court. The Court of Appeal considered that the taking of action was justified and produced the effects of a void dismissal. Consequently, it ordered the employer to pay compensation corresponding to fifty-two months' wages. The appeal judgment is quashed by the Court of Cassation.
According to the Court, a staff representative whose act produces the effects of a null dismissal when the facts invoked justified it, is entitled to compensation for violation of the protective status equal to the remuneration he would have received since his eviction until the expiry of the protection period, within the limit of two years, the minimum legal duration of his mandate, increased by six months. The allowance is therefore capped at 30 months' salary, although the 2005 law increased the term of office from 2 to 4 years.
Transfer of the protected employee
Soc. April 15, 2015 (n°13-25.283) FS-PBR:
The Court of Cassation specifies that in the event of a transfer, the sole continuation of the employment contract by application of Article L. 1224-1 of the Labor Code does not have the effect of putting the new employer in a position to know the existence of protection enjoyed by an employee due to a mandate outside the company. It is therefore up to the employee who avails himself of such protection to establish that he informed the new employer of the existence of this mandate at the latest during the interview prior to dismissal, or, if he This is a break that does not require a prior interview, at the latest before the notification of the act of break, or that the new employer was aware of it.
Employment guarantee clause
Soc. April 15, 2015 (n°13-21.306) FS-PB:
In this case, an employee on sick leave and then on disability was dismissed for incapacity and impossibility of redeployment.
The Court of Appeal ordered the employer to pay various sums, in particular in execution of a job guarantee clause. According to the Court of Cassation, “a contract containing an employment guarantee clause can only be terminated during the period covered by the guarantee in the event of agreement between the parties, serious misconduct by the employee or force majeure”. It follows that the rupture, which originated in a situation of moral harassment suffered by the employee, did not proceed from any of these causes, which justified the condemnation of the employer.
Display and control of working time
Criminal. April 14, 2015 (n°14-83.267) F-PB:
In this case, a labor inspector noted the lack of recording or posting of working hours and reminded the employer, by letter, of his obligations in this regard.
Since the employer did not provide any response, a reminder letter was sent to him. The labor inspector then carried out a counter-visit during which, in the absence of the employer, the employee told him that the working hours were neither recorded nor displayed. Considering that it was impossible for him to control and verify the reality of the working time, the inspector drew up a report from the head of the obstacle. The employer was then found guilty of this offense by the court and appealed against the judgment. The Court of Appeal acquitted the defendant. The Court of Cassation notes that the defendant had been repeatedly reminded to have to meet his obligations in order to allow the control of the application of the provisions relating to the duration and organization of working time in the farm he ran, and that these reminders had had no effect. Consequently, the Court overturns the appeal judgment.
Consequence of the cancellation of professional elections
Soc. April 15, 2015 (n°14-19.139) FS-PB:
Staff delegates and members of the works council, members of the designating college of a company, appointed the members of the CHSCT.
The elections of staff delegates and members of the works council having been cancelled, employees asked for the cancellation of the appointment of members of the CHSCT. According to the Court of Cassation, the cancellation of the elections of the members of the works council and of the staff representatives only causes the elected employees to lose their status as members of these staff representative institutions from the day on which it is pronounced. As a result, the cancellation of the elections of staff delegates and members of the works council on April 1, 2014 had no impact on the regularity of the election of CHSCT members organized on the previous March 31.
Definition of an economic and social unit (UES)
Soc. April 15, 2015 (n°13-24.253) FS-PB:
The employees of one company were transferred and divided among four companies, the first of which was the sole shareholder.
A union and an employee then seized the district court in order to have an UES recognized between these four companies. The Court of Appeal granted this request. The Court of Cassation confirms the judgment. In support of its decision, the Court notes, on the one hand, the concentration of powers by the company, the sole shareholder of each of the four companies, their complementarity in that they all contribute to gas pipeline renovation activities and high voltage lines for the benefit of the ERDF and GRDF companies. On the other hand, it holds that the employees, all from the same company and holders of similar employment contracts, are mobile between the companies in question, come under the same collective agreement and benefit from identical specific advantages.
