Newsletter n° 7 – Social law
Summary
LEGISLATION
NOMINATIVE SOCIAL DECLARATION
Decree No. 2014-1371 of November 17, 2014 – Orders of December 11, 2014
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ADMINISTRATION DECISION DELAYS Decrees No. 2014-1290 and No. 2014-1291 of October 23, 2014
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VALIDATION OF ACQUIRED EXPERIENCE Decree no. 2014-1354 of November 12, 2014
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SUMMARY TABLES OF TARIFF CHANGES ON JANUARY 1, 2015
JURISPRUDENCE
… of November 13, 2014
In the absence of a lower trigger threshold set by the collective agreement, only the hours worked beyond 1607 hours are considered as overtime.
… of December 17, 2014
The fixed daily rate provided for by the bank's collective agreement is validated by the Court of Cassation
… of November 13, 2014
The fixed daily rate as provided for by the notarial collective agreement is void
… of November 13, 2014
Equal treatment of employees
… of December 10, 2014
Dispute relating to severance pay
… of November 19, 2014
The employee whose dismissal is invalid cannot combine unemployment benefits with his remuneration
… of November 5, 2014
Termination of contract work during the trial period
LEGISLATION
Nominative social declaration
The nominative social declaration (DSN) must allow the monthly and single transmission of data sent by companies to the various social protection bodies.
The implementation of this device is progressive. Since 2013, voluntary companies can use it. The use of the DSN will be mandatory from 1 April 2015 for employers who declared in 2013:
- i.e. more than 2 million directly in contributions or social security contributions;
- i.e. more than 1 million for those who have recourse to a declaring third party (notably a chartered accountant), when this third party declares for its entire client portfolio an amount of more than 10 million euros.
Finally, the system will be extended to all declarations and all companies from 1 January 2016.
Since 20131, four forms can be replaced by the DSN in voluntary companies:
- the monthly declaration of labor movements;
- the declaration of deregistration of an employee for complementary or supplementary group contracts;
- the salary certificate for the payment of daily sickness, maternity and paternity allowances for the CNAM and the MSA;
- the employer certificate for Pôle emploi.
Decree No. 2014-1371 of November 17, 2014 relating to the nominative social declaration supplements the list of formalities replaced by the DSN (Art. R.133-14 IV of the Social Security Code): - the salary certificates used to calculate the daily allowances due in respect of accidents at work and occupational diseases;
- the statement of assignment contracts provided by temporary employment companies;
- the summary statement of contributions and social security contributions;
- the declaration of regularization of contributions and social security contributions;
- the declaration of the workforce to collection bodies for the general social security scheme.
Access to the DSN system is dematerialized and can be done via two websites set by an order of December 11, 2014 2 .
When registering on one of these portals, a charter is communicated to the employer who uses the DSN. The charter recalls the technical conditions and procedures according to which the DSN must be carried out and indicates the precautions to be taken when using this device. The list of data collected and sent to the various bodies concerned is set by an order of 11 December 2014 3 . The data is transmitted by the general social security funds, the URSSAF and the national old-age insurance fund for salaried workers. By way of example, the appendix to the decree provides that the employee's social security number may be transmitted:
- to the primary health insurance fund;
- family allowance funds;
- at Pôle Emploi;
- the management, research, studies and statistics department;
- at the National Institute of Statistics and Economic Studies;
- complementary organizations.
1 Decree No. 2013-266 of March 28, 2013 relating to the nominative social declaration
2 Order of 11 December 2014 approving the list of portals and the model charter relating to the nominative social declaration
3 Order of 11 December 2014 setting the data for the nominative social declaration relating to employees covered by the general social security system sent to the competent administrations and bodies
Administrative decisions
Law No. 2013-1005 of November 12, 2013 empowering the Government to simplify relations between the administration and citizens amended Article 21 of Law No. 2000-321 of April 12, 2000 relating to the rights of citizens in their relations with the authorities.
While the law of April 12, 2000 provided that the silence kept by an administration for more than two months is in principle worth rejection, the law of November 12, 2013 enshrines the opposite principle according to which "The silence kept for two months by the administrative authority on a request constitutes a decision of acceptance".
Decrees no. 2014-1290 and no. 2014-1291 of October 23, 2014 provide for exceptions to the rule of implicit acceptance of the new article 21 of law no. 2000-321 of April 12, 2000 relating to the rights of citizens in their relations with the authorities.
These two decrees, which entered into force on November 12, 2014, specifically target exceptions to this article in citizens' relations with the Ministry of Labour, Employment, Vocational Training and Social Dialogue and its administration. Decree No. 2014-1290 specifies the list of procedures, under the responsibility of the Ministry of Labour, Employment, Vocational Training and Social Dialogue, for which an implicit acceptance of the administration is acquired following a period different from the period two months in principle.
The deadlines set by this decree vary between eight and thirty days. The requests covered by these exceptions relate to the organization of working time and rest time.
The request for derogation from the minimum duration of daily rest and the authorization to exceed the maximum daily duration of effective work per employee are thus acquired, in the silence of the administration, at the end of a period of fifteen days. . Similarly, in the silence of the administration, the authorization to practice timetables and the authorization to organize work on a continuous basis for economic reasons and to allocate weekly rest in rotation are acquired at the end of within thirty days. Decree No. 2014-1291 covers administrative procedures to which the rule of “silence equals acceptance” is not applicable. On the contrary, the silence kept for two months by the administration is worth a decision of rejection for the requests listed in the appendix to the decree.
In this respect, the silence kept for two months by the administration is worth a decision to reject the request:
- authorization of conventional termination of the employment contract of protected employees;
- extension of the temporary derogation to Sunday rest;
- authorization to transfer the employment contract of an employee included in a partial transfer of business or establishment.
Validation of acquired experience
Decree No. 2014-1354 of November 12, 2014 on various measures relating to the validation of acquired experience is taken for the application of Law No. 2014-288 of March 5, 2014 relating to vocational training, employment and social democracy.
The decree, which entered into force on November 15, 2014, relaxed the conditions for opening the right to leave for validation of acquired experience, specific to persons holding a fixed-term contract (CDD).
The requirement relating to the exercise of a job under CDD is removed. From now on, the holder of a CDD must justify twenty-four months of salaried activity or apprenticeship, consecutive or not, whatever the nature of the successive contracts, during the last five years to be able to benefit from the leave. (Art. R.6422-7-1 of the Labor Code). The decree specifies that the leave takes place outside the period of performance of the employment contract and must begin no later than twelve months after the end of the contract (Art. R.6422-7-2 of the Labor Code).
However, the leave for validation of acquired experience may be taken, at the request of the employee and with the agreement of the employer, in whole or in part before the end of the employment contract. The procedures for supporting the candidate for the validation of acquired experience are detailed by the decree (Art. R.6423-1 to R.6423-4 of the Labor Code).
This accompaniment is carried out according to the needs of the candidate. It includes a basic module consisting of a methodological aid to the description of the candidate's activities and experience corresponding to the requirements of the reference system of the certification concerned, to the formalization of his validation file, to the preparation of the interview with the jury and, if necessary, in the professional situation. It can also include assistance with orientation and the search for funding to support additional training. Finally, the regional committee for employment, vocational training and guidance and the National Council for employment, vocational training and guidance are designated to ensure the statistical monitoring of the careers of candidates for the validation of acquired experience (Art. R.6423-5 of the Labor Code).
Tariff changes
Revenue
| 2014 | 2015 | |
| minimum wage | €9.53 or €1445.42 | €9.61 or €1457.55 |
| Social security ceiling |
3129 € (monthly value) 172 € (daily value) |
3170 € (monthly value) 174 € (daily value) |
| Monthly internship gratuity (amount exempt from contributions) | €436.05 (until 30.11.2014) €487.03 (from 01.12.2014 to 31.12.2014) |
508,20 € (from 01.01.2015 to 31.08.2015) |
| RSA base | 509,30 € | 513,88 € |
| Specific solidarity allowance | 16,11 € | €16.25/ day |
Costs
| 2014 | 2015 | |
| Meal vouchers: Exemption from the employer's share |
5,33 € | 5,36 € |
Legal interest rate
| 2014 | 2015 | |
| Natural persons outside the professional framework | 0,04 % | 4,06% |
| Other cases | 0,93% |
JURISPRUDENCE
Overtime trigger threshold
Soc. November 13, 2014 (n°13-10.721) FS-P+B:
An extended collective labor convention or agreement or a company or establishment convention or agreement may provide that the working week may vary over all or part of the year provided that, over one year, this duration does not exceed a ceiling of 1607 hours.
The convention or agreement may set a lower ceiling. In this case, the collective timetable adopted from a 1997 agreement provided for 32.5 hours per week, ie a total of 1470 hours. On the other hand, the agreement did not provide for the methods of remuneration for the hours worked beyond this schedule. According to the Court of Cassation, "in the absence of fixing by the collective agreement of a lower trigger threshold, only the hours worked beyond 1607 hours constitute overtime".
Collective banking and notarial agreements: flat rates in days
Soc. December 17, 2014 (n°13-22.890) FS-P+B:
The agreement on the adjustment and reduction of working time in the banking sector of May 29, 2001 stipulates that:
- the count of days and half-days worked is done on the basis of a self-declaration system;
- the organization of the work of the employees must be subject to regular monitoring by the hierarchy, which will monitor in particular any possible work overload. In this case, it will be necessary to carry out an analysis of the situation, to take, if necessary, all appropriate measures to respect, in particular, the minimum duration of daily rest provided for in Article L. 220-1 of the Code of work and not to exceed the number of days worked, within the limits provided for in the last paragraph of Article L. 212-15-3-III of the said code;
- the workload assigned and the length of the resulting day's work must allow each employee to take the daily rest referred to above;
- the minimum duration of this rest period is legally set at 11 hours taken consecutively and, where applicable, according to the terms of article 63 of the bank's collective agreement.
According to the social chamber, the provisions of the agreement meet the requirements relating to the right to health and rest.
Soc. November 13, 2014 (n°13-14.206) FS-P+B:
In this judgment, the Court of Cassation considers that the fixed rate in days as provided for by the collective notarial agreement is zero.
According to the Court, "the provisions of article 8. 4. 2 of the national collective agreement for notaries of 8 June 2001, which are limited to providing, in the first place, that the length of the day's activity must not exceed 10 hours unless exceptionally overloaded with work, secondly that each quarter, each employee concerned draws up a report of his working time which he communicates to the employer and on which he specifies, if necessary, his usual hours of entry and exit in order to be able to assess the usual length of his working days and to remedy any excesses, are not such as to guarantee that the length and workload remain reasonable and ensure a good distribution, in the time, of the work of the person concerned, and, therefore, to ensure the protection of the safety and health of the employee, from which the Court of Appeal should have deduced that the agreement for a fixed number of days was void. ".
The qualities of an employee cannot justify a difference in treatment when hiring
Soc. November 5, 2014 (n°12-20.069) FS-P+B:
In this case, an employee alleges before the industrial tribunal the disrespect of the principle of "equal work, equal pay" by his employer and requests the payment of various sums. In support of his request, the employee invokes the fact that one of his colleagues occupying the same functions as him within the same department, while justifying less seniority, had a classification almost identical to his and received a remuneration 20% higher than that which he received.
The Court of Cassation considers that "if the professional qualities or the difference in quality of work can constitute objective reasons justifying a difference in treatment between two employees occupying the same job, such elements likely to justify higher salary increases or a faster progression in the index grid, for the most deserving employee, cannot justify a difference in treatment during hiring, at a time when the employer has not yet been able to assess the professional qualities”.
In the following recital, the Court adds "that the only difference in diplomas, does not allow to base a difference of remuneration between employees who exercise the same functions, except if it is demonstrated by justifications, of which it is up to the judge to check the reality and the relevance, that the possession of a specific diploma attests to particular knowledge useful to the exercise of the occupied function”.
Dispute relating to severance pay
Soc. December 10, 2014 (n°13-22.134) FS-P+B:
The employment contract of an employee of a sole proprietorship is taken over by a SARL.
The seniority of the employee, which amounts to fifteen years, is expressly included. Subsequently, the employer and the employee sign a termination under the terms of which the seniority is fixed at 9 months.
The employee seized the industrial tribunal. The employee was dismissed by the Court of Appeal for her claims for payment of contractual termination indemnity and damages.
The Court of Cassation quashed the judgment on the grounds that: "the absence of a request for annulment of the conventional termination and therefore of invocation of means in support of such a request, does not prohibit an employee from demanding the compliance by the employer with the provisions of article L. 1237-13 of the labor code relating to the minimum amount of the specific compensation for such a termination”. In this ruling, the Court of Cassation admits that one of the parties to the breach contract then contests the terms of the contract without contesting its validity.
Accumulation of earnings and unemployment benefits
Soc. November 19, 2014 (n°13-23.643) FS-P+B+R:
In the present case, the Court of Appeal found that the employee had obtained an order from his employer to pay compensation in lieu of salary for the period between his null dismissal and his reinstatement and decided that the payment of allowances unemployment benefits paid by the insurance organization for this period is undue.
The Court of Cassation approves the decision of the Court of Appeal:
"but given that in his relations with the unemployment insurance body, the employee whose dismissal is void for having been pronounced without administrative authorization or despite a refusal of authorization, is not entitled to combine unemployment benefits with his remuneration or an indemnity equivalent thereto.
Compliance with the notice period cannot lead to the termination of the contract beyond the trial period.
Soc. November 5, 2014 (n°13-18.114) FS-P+B:
The employment contract of an employee hired on January 17, 2011 provides for a renewable three-month trial period.
By letter of April 8, 2011, the employer informs the employee that his trial is inconclusive and that in order to comply with the fifteen-day notice period, the employment contract will be terminated as of the following April 22, i.e. six days after the end of the trial period. In this case, the Court of Cassation is asked whether the employment contract was terminated during the trial period.
According to the Court of Cassation, the employment relationship continued beyond the end of the trial period. Consequently, the employee is entitled to the payment of damages for abusive and irregular dismissal.
