Summary
REGULATION
PROFESSIONAL SECURITY CONTRACT
Agreement of January 26, 2015
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COMBINATION OF EMPLOYMENT AND RETIREMENT
Decree of December 30, 2014 ~ Circular of December 29, 2014
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REDUCTION OF EMPLOYER CONTRIBUTIONS
Decree of December 29, 2014
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PART-TIME
WORK Order of January 29, 2015
CASE LAW
… of December 9, 2014
Judicial liquidation: the temporarily unfit employee can be dismissed without a second medical examination
… of December 10, 2014
Return from parental leave: employee's refusal to resume work in another position
… of December 16, 2014
Disciplinary dismissal: composition of the disciplinary board
… of December 17, 2014
Disciplinary dismissal: guarantee of impartiality
… of December 17, 2014
Dismissal for unfitness: opinion of the occupational physician
… of December 25, 2014
Negotiated termination and supplementary group retirement savings contract
… of December 9, 2014
Time off for union duties: travel time
… of December 16, 2014
Right of unions to take legal action: clarification on "the collective interest of the profession"
REGULATION
Professional security contract
Created by Law No. 2011-893 of July 28, 2011, known as the "Cherpion Law," the Professional Security Contract (CSP) was the subject of the national interprofessional agreement of May 31, 2011, and subsequently the Unédic agreement of July 19, 2011. This system, which expired on December 31, 2014, and was extended until December 31, 2015, defined the procedures for accessing the CSP.
On January 26, 2015, the social partners signed a new agreement with the State, under which the CSP system was renewed but modified to ensure its effectiveness. This new system came into effect on February 1, 2015, and is subject to approval by the Minister of Labor.
The scheme will not be renewed for fixed-term contracts and temporary work contracts
Among the changes made to the CSP (Personalized Support Contract), it should be noted that the experimental scheme allowing job seekers at the end of a fixed-term contract, temporary work assignment, or project-based contract to benefit from a CSP, provided they had accrued entitlement to unemployment benefits (ARE), is not being maintained. However, on an experimental basis, job seekers at the end of a fixed-term contract of more than six months will be able to benefit from a CSP in certain employment areas. The agreement does not specify which areas are concerned.
Duration of the CSP
The CSP (Personalized Support Contract) is concluded for a maximum duration of twelve months. Periods of work completed after the end of the sixth month of the CSP may allow the CSP to be extended for a period equal to the total of these periods of work, up to a maximum of three additional months.
Membership
To facilitate a faster start to support for the beneficiary, the application file may be submitted by the employer in two parts: the application form and the supporting documents.
Professional Security Allowance:
The amount of the professional security allowance is reduced from 80% to 75% of the daily reference wage. While this amount could not previously be less than the amount of unemployment benefits (ARE) to which the employee would have been entitled, it is now stipulated that this amount cannot exceed the amount of the ARE.
Reclassification
A beneficiary of a CSP (Professional Transition Contract) who finds employment before the end of the tenth month of their contract, whether in the form of a permanent contract, a fixed-term contract, or a temporary contract of at least six months, leaves the program and can claim a re-employment bonus equivalent to 50% of their remaining entitlement to the professional security allowance.
When a beneficiary takes up employment before the end of the contract with a salary lower than their previous salary for the same working hours, the requirement of a difference of at least 15% compared to their previous salary to qualify for a differential re-employment allowance is not included in the new agreement.
Employment and training during the CSP
The contract beneficiary may undertake as many periods of paid work as they wish, either through fixed-term contracts or temporary work. The minimum duration of each work period is set at three days, instead of the previous fourteen, and cannot exceed six months in total.
These work periods must, however, be validated beforehand by the beneficiary's assigned advisor to ensure their alignment with the beneficiary's redeployment plan.
While it remains specified that the training courses available to the contract beneficiary are those that enable a rapid and sustainable return to stable employment, it is now also stated that the CSP beneficiary has automatic access to all training courses eligible for the personal training account, provided that the training corresponds to their career plan.
Combining employment and retirement
Articles 19 and 20 of the Law of 20 January 2014 amend the rules governing the combination of employment and retirement benefits. Before this law came into force, the principle of contributions not generating new pension rights did not apply to inter-scheme employment-retirement combinations, in other words, to combining a retirement pension from one scheme with employment generating contributions to another scheme, nor to intra-scheme combinations for special schemes, namely, combining a pension and contributions within the same scheme. Article 19 therefore extended this principle to all basic pension schemes for insured persons claiming their first old-age pension from 1 January 2015 onwards, with the exception of military pension schemes and insured persons claiming a retirement pension before age 55, who remain subject to the previous rules.
Article 20 of the law of January 20, 2014, establishes an exception to the requirement of liquidating all old-age pensions specific to the liberalized work-retirement combination scheme. According to the interministerial circular of December 29, 2014, "this exception allows for adjustments to the conditions for benefiting from the liberalized work-retirement combination scheme for insured individuals who meet the age and insurance period requirements but cannot liquidate all their retirement pensions due to one or more old-age pensions whose eligibility age, with or without a reduction, is over 62, for insured individuals born on or after January 1, 1955. Without calling into question the age and insurance period requirements for benefiting from the liberalized work-retirement combination scheme, this exception allows the subsidiarity condition to be considered met even in the absence of liquidation of all pensions."
The decree of December 30, 20143, which came into force on January 1, 2015, is taken for the application of these articles and adapts the provisions of the Social Security Code relating to the combination of employment and retirement.
1 Law No. 2014-40 of 20 January 2014 guaranteeing the future and fairness of the pension system
2 Interministerial Circular No. DSS/3A/2014/347 of 29 December 2014 relating to the new rules applicable to combining paid employment and an old-age pension
3 Decree No. 2014-1713 relating to combining paid employment and an old-age pension
Employer contributions
Decree No. 2014-1688 of December 29, 2014, relating to the implementation of the general reduction of employer contributions, is applicable to remuneration due from January 1, 2015. The decree notably sets out the conditions of application and the methods of calculation of the "Fillon" reduction, the maximum rates of which will reach 27.95 points for employers subject to a FNAL contribution of 0.1% and 28.35 points for employers subject to a FNAL contribution of 0.5%.
Part-time work
Article 5 of the Law of 20 December 2014 on simplifying business operations authorizes the government to issue ordinances concerning the minimum duration of part-time employment contracts established by the Law of 14 June 2013.
An ordinance was issued on 29 January 2015. Effective 31 January 2015, it aims to address the silence of the Law of 14 June 2013 regarding the situation of employees whose contracts stipulate a duration of less than 24 hours per week, or less than the duration set by a sectoral agreement, who wish to have their working hours increased to this minimum. Article 1 of the ordinance extends to this situation the provisions applicable when transitioning from part-time to full-time work. The employee thus benefits from priority for the allocation of a position within their professional category or an equivalent position. Similarly, if the collective agreement allows it, the employer may offer the employee a job outside their professional category or a non-equivalent job.
Articles 2 and 3 of the ordinance of January 29, 2015, restrict the scope of the provisions relating to minimum working hours. Indeed, these articles specify that this minimum duration does not apply to contracts with a maximum duration of seven days and to replacement contracts (fixed-term contracts and temporary work contracts) for employees who are temporarily absent.
4 Law No. 2013-504 of 14 June 2013 on securing employment 5 Ordinance No. 2015-82 of 29 January 2015 on simplifying and securing the application of the rules on part-time work resulting from Law No. 2013-504 of 14 June 2013 on securing employment
CASE LAW
Judicial liquidation: an employee temporarily unfit for work can be dismissed without a second medical examination
Soc. December 9, 2014 (No. 13-12.535) FP-PB:
In the event of a total cessation of activity of a company, resulting in the elimination of all jobs and the impossibility of reassigning the temporarily unfit employee, the liquidator cannot be required to organize a second medical examination before proceeding with the dismissal.
Return from parental leave: employee's refusal to resume work in another position
Soc. 10 December 2014 (No. 13-22.135) FS-PB:
An employee on parental leave requested to return to work part-time. The employer considered that the position of "quality control" manager, which she had previously held full-time, could only be filled on a full-time basis and offered her an alternative position. The employee refused to take up this position upon the end of her leave. The employer then dismissed her for gross misconduct.
The question arose as to whether the employee's refusal could constitute grounds for dismissal for gross misconduct.
The Court of Cassation ruled in the negative. In support of its decision, the Court noted, firstly, that the employee had merely exercised the option available to her under Article L.1225-51 of the French Labor Code, allowing her to convert her parental leave into part-time work. The Court further specified that the employer failed to demonstrate that the position she held before her maternity leave, which was available when she requested to return to work part-time, was incompatible with part-time work.
Insurance companies: composition of the disciplinary board
Soc. 16 December 2014 (No. 13-23.375) FS-PB:
An employee dismissed for serious misconduct after a disciplinary board meeting comprised of two employee representatives and two employer representatives contested his dismissal. In support of his claim, he argued that the collective bargaining agreement for insurance companies had not been observed, as it stipulates that the disciplinary board must consist of three employee representatives and three employer representatives.
The Court of Cassation noted that the employee, having been given the opportunity to designate his three representatives, did not request a replacement for one of his representatives who was unavailable, nor did he request a postponement of the disciplinary board meeting, and that parity between employee and management representatives had been maintained. The employer had thus fulfilled its obligations.
Disciplinary dismissal: reminder of the guarantee of impartiality
Soc. 17 December 2014 (No. 13-10.444) FS-PB:
In this ruling, the Court of Cassation reiterates that consulting a body tasked, under the local collective agreement entitled "Air Transport Collective Agreement," with providing an opinion on a disciplinary measure contemplated by the employer, constitutes a fundamental guarantee. A dismissal issued without the council having been consulted and having rendered its opinion according to proper procedure cannot have a genuine and serious cause.
Furthermore, according to Article 24 of the agreement, the disciplinary board, composed of the chairperson appointed by management and a delegation of employees, must summon the person responsible for investigating the case. Members of the disciplinary board cannot therefore be responsible for investigating the case and appear before it in that capacity. The guarantee of impartiality is not ensured when the functions of the person responsible for investigating the case are performed by the chairperson of the disciplinary board appointed by the employer. A dismissal issued in violation of these guarantees is without genuine and serious cause.
Dismissal for incapacity: opinion of the occupational physician
Soc. 17 December 2014 (No. 13-12.277) FS-PB:
An employee dismissed for incapacity and impossibility of reassignment challenged the validity of the occupational physician's opinion before the labor court, arguing that the association was not accredited by the regional director of labor, employment, and vocational training.
According to the Court of Cassation, in the absence of an appeal to the labor inspector against the occupational physician's opinion, the judge is bound by it. The judge cannot therefore refuse to give effect to the physician's opinion and declare the dismissal without just cause. Regarding
negotiated terminations and supplementary group retirement savings contracts,
the Ministerial Response, Senate (December 25, 2014, No. 9678), states:
Group retirement contracts are group contracts whose execution is linked to the cessation of professional activity. They only allow for early withdrawal in exceptional circumstances, exhaustively listed in the Insurance Code. Among these cases is the expiration of the insured person's unemployment benefits following dismissal.
Since a negotiated termination of the employment contract is not a form of dismissal, it does not allow the insured person to obtain early access to the funds saved in their group retirement plan.
Delegation hours: travel time
Soc. December 9, 2014 (No. 13-22.212) FP-PB:
In 2013, the Social Chamber of the Court of Cassation ruled that union representatives on works councils should not suffer any loss of pay due to the performance of their duties. Travel time, taken outside normal working hours and undertaken in the course of carrying out representative functions, should be paid as actual working time for the portion exceeding the normal commute between home and the workplace.
The question of compensation for travel time for employee representatives has once again been brought before the Court of Cassation. In this particular case, a union representative filed a claim with the labor court seeking back pay for travel time and time spent on union duties.
The Court of Cassation upheld the Court of Appeal's decision, which dismissed these claims. In support of its decision, the Court specifies that "in the absence of any contrary provision by law, custom or unilateral undertaking by the employer, travel time taken during normal working hours in the performance of representative functions is deducted from the hours of delegation".
6 Soc. June 12, 2013 (No. 12-15.064) FP-PB
Trade unions' right to take legal action: clarification on "the collective interest of the profession"
Soc. 16 December 2014 (No. 13-22.308) FS-PB:
An agreement on workforce planning and skills management stipulated that the employer would provide employee representatives with annual social data showing male and female salaries for each benchmark job.
Claiming that the employer was failing to provide accurate and relevant information, a union brought an action before the High Court seeking an order compelling the employer, under penalty of a fine, to provide the works council with a salary scale broken down by benchmark job.
The Court of Cassation noted that "the documents demanded from the employer were intended for the works council, which had not requested them and had not joined the union's request." Consequently, the union lacked standing and interest in bringing the action.
