Summary
REGULATIONS
PROFESSIONAL SECURITY CONTRACT
Convention of January 26, 2015
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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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TIME WORK
Ordinance of January 29, 2015
JURISPRUDENCE
… of December 9, 2014
Liquidation: the temporarily incapacitated employee can be dismissed without a second medical examination
… of December 10, 2014
Return from parental leave: refusal of the employee to resume his activity 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 incapacity: opinion of the occupational doctor
… of December 25,
mutual agreement and supplementary retirement collective savings contract
… of December 9, 2014
Hours of delegation: travel time
... of December 16, 2014
Trade unions' right to take legal action: clarification on "the collective interest of the profession"
REGULATIONS
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 then of the Unédic convention on July 19 2011. This system, expiring on December 31, 2014 and extended until December 31, 2015, made it possible to define the procedures for using the CSP.
On January 26, 2015, the social partners signed a new agreement with the State under the terms of which the CSP system is renewed but is subject to modifications in order to guarantee its effectiveness. This new system entered into force on February 1, 2015 and is subject to an approval procedure by the Minister of Labour.
Non-renewal of the system for fixed-term contracts and interim contracts
Among the changes made to the CSP, it should be noted that, the experimental system allowing job seekers at the end of a fixed-term contract, at the end of a temporary assignment or at the end of a construction contract, to benefit from a CSP, on the condition of having acquired rights to the benefit of the return-to-work assistance allowance (ARE), is not maintained. However, it is planned, on an experimental basis, that job seekers at the end of a CDD of more than six months will be able to benefit from a CSP in certain employment areas. The agreement does not specify the basins targeted.
Duration of CSP
The CSP is concluded for a maximum period of twelve months. Work periods performed after the end of the sixth month of the CSP may allow the CSP to be extended for a period equal to all of these work periods within the limit of three additional months.
Membership
In order to allow support for the beneficiary to begin more quickly, the membership file may be sent by the employer in two parts: the membership form on the one hand and the additional documents on the other.
Professional security allowance
The amount of the professional security allowance is reduced from 80 to 75% of the daily reference salary. If this amount could not be less than the amount of the ARE to which the employee could have claimed, it is now provided that this amount cannot be greater than the amount of the ARE.
Reclassification
The beneficiary of a CSP who finds a job before the end of the tenth month of the contract in the form of a permanent contract, a fixed-term contract or an interim contract of at least six months, leaves of the scheme and may request the payment of a redeployment bonus equivalent to 50% of the remainder of his rights to the professional security allowance.
When the beneficiary resumes employment before the end of the contract whose remuneration is lower than the previous remuneration, for the same duration of work, the requirement of a difference of at least 15% compared to the remuneration of his previous employment , to claim the benefit of a differential redeployment indemnity is not reproduced in the new agreement.
Employment and training during the CSP
The beneficiary of the contract may perform as many periods of paid work as he wishes in the form of a fixed-term or temporary contract.
The duration of each work period is set at a minimum of three days instead of fourteen days previously and may not exceed six months in total. These work periods must nevertheless be validated beforehand by the beneficiary's senior adviser in order to check their consistency with the beneficiary's redeployment project.
Although it is still specified that the training courses that the beneficiary of the contract can follow are those which allow a rapid and lasting return to sustainable employment, it is now mentioned that the beneficiary of the CSP has access by right to all the training courses eligible for the personal training account, when the training corresponds to his professional project.
Accumulation of employment and retirement
Articles 19 and 20 of the law of January 20, 20141 modify the combined employment-retirement scheme.
Prior to the entry into force of this law, the principle of contributions not producing new pension rights was not applicable to the accumulation of inter-scheme retirement employment, in other words, to the accumulation of a retirement pension in a scheme with a employment giving rise to contributions to another scheme and to intra-scheme accumulation for special schemes, i.e. the accumulation of a pension and contributions in the same scheme. Article 19 therefore extended this principle to all basic pension schemes for insured persons claiming a first old-age pension from 1 January 2015, with the exception of military pension schemes and insured persons claiming a pension retirement before age 55 who remain subject to the previous scheme. Article 20 of the law of January 20, 2014 establishes a derogation from the condition of liquidation of all old-age pensions specific to the liberalized employment-retirement combination.
According to the interministerial circular of 29 December 20142, "this derogation makes it possible to adjust the conditions for benefiting from liberalized combined pension employment for insured persons who meet the conditions of age and duration of insurance but cannot liquidate all their pensions retirement due to one or more old-age pensions for which the eligibility age, with or without a discount” is greater than 62 years, for insured persons born on or after January 1, 1955. Without calling into question, the condition of age and duration of insurance to be able to benefit from the liberalized combination of employment and retirement, this derogation makes it possible to consider that the condition of subsidiarity is fulfilled, including in the absence of payment of all pensions. The decree of December 30, 20143, which entered into force on January 1, 2015, is adopted 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 January 20, 2014 guaranteeing the future and fairness of the pension system
2 Interministerial circular no. DSS/3A/2014/347 of December 29, 2014 relating to the new rules applicable to the accumulation of a remunerated activity and an old-age pension
3 Decree No. 2014-1713 relating to the combination of a remunerated activity and an old-age pension
Employer contributions
Decree No. 2014-1688 of December 29, 2014 relating to the implementation of the general reduction in contributions and employer contributions is applicable to remuneration due from January 1, 2015. The decree notably sets the conditions of application and the terms calculation of the "Fillon" reduction, the maximum rates of which will reach 27.95 points for employers subject to a contribution to the FNAL at 0.1% and 28.35 points for employers subject to a contribution to the FNAL at 0.5% .
Part-time work
Article 5 of the law of 20 December 2014 relating to the simplification of business life empowers the government to adopt by ordinance provisions relating to the minimum duration of part-time employment contracts established by the law of 14 June 20134.
An ordinance was issued on January 29, 20155. Coming into force on January 31, 2015, this aims to compensate for the silence of the law of June 14, 2013 concerning the situation of an employee whose contract provides for a shorter duration 24 hours per week or less than the duration set by branch agreement who wishes to see their working time increased to this minimum duration.
Article 1 of the ordinance extends to this hypothesis, the regime provided for in the event of a transition from part-time to full-time. The employee thus benefits from a priority for the allocation of a job belonging to his professional category or an equivalent job. Similarly, if the collective agreement allows it, the employer may offer the employee a job that does not fall within his professional category or a non-equivalent job. Articles 2 and 3 of the order of 29 January 2015 restrict the scope of the provisions relating to the minimum working time. Indeed, these articles specify that this minimum duration is not applicable to contracts of a maximum duration of seven days and to replacement contracts (fixed-term contracts and temporary contracts) of temporarily absent employees.
4 Law no. 2013-504 of June 14, 2013 relating to job security 5 Ordinance no. 2015-82 of January 29, 2015 relating to the simplification and securing of the procedures for applying the rules on part-time work resulting from law no. 2013-504 of June 14, 2013 on job security
JURISPRUDENCE
Judicial liquidation: the temporarily incapacitated employee can be dismissed without a second medical examination
Soc. December 9, 2014 (n°13-12.535) FP-PB:
In the event of total cessation of activity of a company, leading to the elimination of all workstations and the impossibility of reclassification of the temporarily incapacitated employee, the liquidator cannot be required to organize a second medical examination before carrying out the dismissal.
Return from parental leave: refusal of the employee to resume his activity in another position
Soc. December 10, 2014 (n°13-22.135) FS-PB:
An employee benefiting from parental leave asks to return to her duties on a part-time basis.
The employer considers that the position of “quality control” manager that she previously occupied full-time can only be occupied full-time and offers her another position. The employee refuses to return to this position at the end of her leave. The employer then dismissed her for serious misconduct. The question arises as to whether the refusal of the employee may be a reason for dismissal for serious misconduct.
The Court of Cassation answers negatively. In support of its decision, the Court notes, on the one hand, that the employee merely exercised the option reserved for her by article L.1225-51 of the Labor Code, allowing her to convert her parental leave working part-time. The Court also specified that the employer did not demonstrate that the job held before the maternity leave, which was available when she had made her request to resume her part-time activity, was not compatible with a part-time activity.
Insurance companies: composition of the disciplinary board
Soc. December 16, 2014 (n°13-23.375) FS-PB:
An employee dismissed for serious misconduct after the meeting of the disciplinary council bringing together two staff representatives and two employer representatives, challenges his dismissal.
In support of his request, he invokes non-compliance with the collective agreement of insurance companies, under which the disciplinary board is made up of three members representing staff and three members representing the employer. The Court of Cassation noted that the employee, given the opportunity to appoint his three representatives, did not ask to have one of his representatives then unavailable replaced, nor to postpone the meeting of the Disciplinary Board and that the parity between employee and management representatives had been respected. The employer has thus fulfilled its obligations.
Disciplinary dismissal: reminder on the guarantee of impartiality
Soc. December 17, 2014 (n°13-10.444) FS-PB:
In this judgment, the Court of Cassation recalls that the consultation of a body responsible, under the local collective agreement entitled, collective agreement for air transport, to give an opinion on a disciplinary measure envisaged by the employer, constitutes a substantive guarantee.
The dismissal pronounced without the board having been consulted and having rendered its opinion according to a regular procedure cannot have a real and serious cause. In addition, according to article 24 of the agreement, the disciplinary council, made up of the president designated by the management and a delegation of employees, must convene the person in charge, in charge of the instruction of the file. The members of the Disciplinary Board cannot therefore be responsible for investigating the case and intervene in this capacity before it. The guarantee of impartiality is not ensured when the functions of the person responsible for examining the case are performed by the chairman of the disciplinary council appointed by the employer. The dismissal pronounced in violation of these guarantees is without real and serious cause.
Dismissal for incapacity: opinion of the occupational physician
Soc. December 17, 2014 (n°13-12.277) FS-PB:
An employee dismissed for incapacity and impossibility of reclassification disputes before the labor court, the validity of the opinion of the occupational doctor because of the lack of approval of the association by the regional director of work, employment and vocational training.
According to the Court of Cassation, in the absence of appeal exercised before the labor inspector, against the opinions of the occupational physician, these are binding on the judge.
The judge cannot therefore refuse to give effect to the opinions given by this doctor to declare the dismissal without real and serious cause. Contractual termination and collective supplementary retirement savings contract
Ministerial response, Senate (December 25, 2014, no. 9678):
Collective retirement contracts are group contracts whose performance is linked to the cessation of professional activity.
They only include the possibility of release in exceptional cases, exhaustively listed by the Insurance Code. Among these cases is the expiry of the rights of the insured person to unemployment benefits in the event of dismissal. The conventional breach of the employment contract, not being a form of dismissal, does not allow the insured to obtain the early release of the sums saved in his collective retirement contract.
Delegation hours: travel time
Soc. December 9, 2014 (n°13-22.212) FP-PB:
In 2013, the social chamber of the Court of Cassation6 considered that the trade union representative on the works council should not suffer any loss of remuneration due to the exercise of his mandate.
Travel time, taken outside normal working hours and carried out in the performance of representative duties, was to be remunerated as actual working time for the part exceeding the normal travel time between home and place of work. The question of the remuneration of the travel time of a staff representative is again posed to the Court of Cassation.
In this case, an employee union representative asked the labor court to recall wages for travel time and hours of delegation. The Court of Cassation approves the Court of Appeal which rejects these requests. In support of its decision, the Court specified that in "the absence of provision to the contrary by law, a custom or a unilateral commitment by the employer, the travel time, taken during the normal working hours in execution representative functions, is deducted from the hours of delegation".
6 Soc. June 12, 2013 (n°12-15.064) FP-PB
Unions' right to take legal action: clarification on "the collective interest of the profession"
Soc. December 16, 2014 (n°13-22.308) FS-PB:
An agreement on the forward management of jobs and skills provided that the employer would provide employee representatives with social data each year showing the remuneration of men and women for each benchmark job.
Arguing that the employer was failing in its obligation to deliver fair and relevant information, a trade union seized the tribunal de grande instance to order the employer, under penalty, to communicate to the works council the grid remuneration broken down by benchmark profession.
The Court of Cassation noted that "the documents required of the employer were intended for the works council, which did not request their communication and had not joined in the union's request". It follows that the union did not have the standing and interest to act.
