Newsletter n°16 – Social law
Summary
Regulations
Sunday work
Maillé law – Macron bill
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Taking into account of internship periods by the old-age insurance scheme
Decree of March 11, 2015
Case law
… of February 11, 2015
Validity of the designation of a compulsory complementary insurance organization
… of February 11, 2015
Reminder concerning the exercise of the right to strike
… of February 11, 2015
Unenforceability of a modification of the internal regulations
… of March 3, 2015
Capacity of the CHSCT to receive compensation for the damage resulting from the infringement of its prerogatives
… of February 12, 2015
Social security contributions: integration of the compensation for violation of the protective status of an employee
… of March 3, 2015
Waiver of the non-competition
… of March 11, 2015
Obligation of result of the employer in terms of protection of the health and safety of the employer
… of February 10, 2015
Professional character of the SMS sent or received on the telephone made available by the employer
Regulations
Sunday work
The principle
The regulations relating to the rest of employees provide that the employer cannot have an employee work more than six days a week (Art. L. 3132-1 of the Labor Code).
This weekly rest, of a minimum duration of 24 hours to which are added the hours of daily rest, must in principle be given on Sunday (Art. L.3132-3 of the Labor Code). Certain activities necessarily having to be maintained throughout the week, several derogations allowing the use of work on Sundays have been provided for and framed in a relatively strict manner by the legislator. These derogatory regimes are essentially governed by law no. 2009-974 of August 10, 2009, known as the Mallié law (I). Moreover, insofar as the bill for growth, activity and equal economic opportunities intends to revisit this system, it is appropriate to mention its provisions here (II).
I. exceptions to the principle of Sunday rest
The labor code provides for several derogatory regimes to the principle of Sunday rest.
These derogations can be classified into four categories. First of all, the legislator has established a series of derogations from weekly rest which in practice may derogate from the principle of Sunday rest.
These exceptions correspond to special cases such as urgent works or seasonal activities. Insofar as these provisions are of very specific application, their content will not be further developed. On the other hand, it is necessary to take an interest in the three other types of derogations, which are distinguished by their methods of obtaining. The legislator has thus enshrined permanent legal derogations (Art. L.3132-12 and -13 of the Labor Code) (A), conventional derogations (B) and finally, administrative derogations (C).
A. Permanent exemptions from law
Permanent derogations allow certain establishments, whose operation or opening is made necessary by the constraints of production, activity or the needs of the public, may derogate from the rule of Sunday rest by allocating weekly rest in rotation (Art. L.3132-12 of the Labor Code).
The activities concerned by these permanent exemptions are set by decree (Art. R. 3132-5 of the Labor Code). Similarly, food retail businesses benefit from a permanent derogation under which weekly rest can be given on Sundays from 1 p.m.
B. Conventional exceptions
In industrial companies, the principle of Sunday rest can be subject to arrangements by agreement.
Indeed, a collective agreement or failing that, an authorization from the labor inspector can make it possible to organize the work on a continuous basis or to use a replacement team. In these two hypotheses, the agreement makes it possible to grant weekly rest to employees on a day other than Sunday. It should be noted that in the event of recourse to a replacement team, the remuneration for the work carried out on Sunday is necessarily increased by at least 50% compared to that which would be due for an equivalent period carried out according to the normal working hours. the company.
C. Temporary derogations
Temporary derogations are granted by the prefect or by the mayor on a permanent or temporary basis.
1. Exemptions granted by the prefect
Under the terms of article L. 3132-20 of the Labor Code, when it is established that the simultaneous rest, on Sunday, of all the employees of an establishment would be detrimental to the public or would compromise the normal functioning of this establishment, rest can be organized according to different methods and in particular from Sunday noon to Monday noon or in rotation.
The authorization granted to an establishment can be extended to several or all of the establishments in the same locality carrying out the same activity, addressing the same clientele (Art. L.3132-23 of the Labor Code). Retail businesses located in towns of tourist or thermal interest and in tourist areas with exceptional affluence or permanent cultural activities, benefit from a separate regime and may, by right, give weekly rest in rotation. for all or part of the staff (Art. L.3132-25 of the labor code).
The prefect may likewise authorize retail establishments which make goods and services available within a perimeter of exceptional consumption use (PUCE) characterized by Sunday consumption habits, the size of the clientele concerned and the removal of the latter from this perimeter, in urban units of more than 1,000,000 inhabitants, to give weekly rest in rotation (Art. L.3132-25-1 of the Labor Code).
These authorizations have a limited duration of five years (Art. L.3132-25-6 of the Labor Code). The PUCE is established by the prefect on the basis of a collective agreement or, failing that, on the basis of a unilateral decision by the employer taken by referendum.
The collective agreement notably sets out the compensation granted to employees deprived of Sunday rest as well as the commitments made in terms of employment. Only employees who have given their consent can work on the basis of such authorization.
2. Exemptions granted by the mayor
In retail businesses where the weekly rest normally takes place on Sundays, the mayor or the prefect of Paris in Paris can abolish this rest up to five times a year.
In this case, the employee receives remuneration at least equal to twice the remuneration normally due for an equivalent period as well as compensatory rest equivalent in time.
D. Penalty
In the event of non-compliance with these provisions, the labor inspector may seize the judicial judge in summary proceedings in order to have all appropriate measures ordered to put an end in retail sales and consumer service establishments to the illegal use of employees. The judge can thus order the closing of the establishment on Sunday and match his decision with a penalty payment (Art. L.3132-31 of the labor code).
Finally, this offense can be punished with the fine provided for fifth-class offenses (Art. R.3135-2 of the Labor Code.
II. The changes envisaged in the bill for growth, activity and equal economic opportunity – Macron Bill
The regulation of Sunday work is hotly debated. Although the bill for growth, activity and equal economic opportunities, inspired by the conclusions submitted by Jean Paul Bailly to the government, has not yet been definitively adopted, it is appropriate to briefly mention the changes made to Sunday work, based on the text adopted by the National Assembly.
A. New criteria for the delimitation of specific areas
1. International tourist areas
The bill modifies the zoning provided for by the Mallié law. “International tourist areas” (ZTI) were thus created, delimited by the ministers responsible for labour, tourism and trade, which are characterized by:
- their international influence
- the influx of tourists
- the importance of the purchases made by these tourists.
These criteria are intended to be specified by decree.
2. Tourist areas
The bill provides for a common denomination for tourist, spa or permanent cultural activity municipalities, which should be grouped together under the single title of tourist zone (ZT).
3. From the CHIP to the shopping area
Perimeters of exceptional use and consumption (PUCE) established by the Mallié law should be renamed “commercial areas” (ZC) when proof of previous use for commercial consumption will not have to be provided.
These areas are characterized by a commercial offer and a particularly significant potential demand as well as the immediate proximity of a border area (Art. L.3132-25-1 of the labor code).
B. Store opening conditions
According to the draft law, the delimitation of the ZTIs will fall under the competence of the government after consultation with the mayor.
The delimitation of ZTs and ZCs should be decided by the regional prefect. In the three zones, the opening of shops on Sunday will be subject to the conclusion of a collective agreement setting compensation.
The bill increased the number of Sunday openings from 5 to 12 Sundays at most, the opening of the last 7 Sundays being conditional on the assent of the public establishment for inter-municipal cooperation.
The report of the Senate committee was tabled on March 27, 2015 and the discussion in public session began on April 7. The vote on the bill in the Senate is scheduled for May 6, 2015.
Validation of internships by the old-age insurance scheme
Under the terms of Article L. 351-17 of the Social Security Code, created by Article 28 of Law No. 2014-40 of January 20, 2014, students may request that the general scheme social security, internship periods subject to the payment of contributions and within the limit of two quarters.
The decree of March 11, 20151, applicable to internship periods beginning after its publication, provides the terms and conditions allowing students to request that internship periods be taken into account. These conditions relate in particular to the duration of the internship and the deadline for submitting the application.
1 Decree No. 2015-284 of March 11, 2015 specifying the terms and conditions for the validation of internships in companies by the general old-age insurance scheme
Case law
Designation of a compulsory complementary insurance organization
An addendum, extended by decree, to the extended national collective agreement for craft businesses in the bakery and bakery-pastry sector provides for the implementation of a compulsory additional reimbursement scheme for health costs for employees falling within the scope application of this agreement. To this end, Ag2r Prévoyance was appointed under the terms of article 13 of this amendment to manage this scheme and article 14 required all companies falling within the scope of the amendment to take out the guarantees that it provides for as from 1 January 2007. The two following judgments relate to the situation of craftsmen who refused to join the scheme designated by agreement, who then saw the designated body seize the courts, on the grounds that membership in this plan was compulsory, in order to obtain reminders of contributions.
Soc. February 11, 2015 (n°14-13.538) FS-PB:
To reject the request of the insurance organization, the Court of Appeal bases itself on the one hand, on the decision of the Constitutional Council of June 13, 2013 which deprives Article L. 912-1 of the Social Security Code of its conformity with the Constitution and therefore the litigious endorsement of its legitimacy and on the other hand, on the absence of a contract in force on this date between the provident organization and the company.
The Court of Cassation overturned this judgment. Indeed, the Court considers that the Constitutional Council in its decision of June 13, 2013 stated that the declaration of unconstitutionality of Article L. 912-1 of the Social Security Code was not applicable to contracts taken out on this basis, in progress at the time of publication of the decision and binding companies to those governed by the insurance code, to institutions governed by title III of the social security code and to mutual insurance companies governed by the mutual insurance code. As a result, according to the Court of Cassation, the contracts in progress are the acts having the character of conventions or collective agreements having proceeded to the designation of insurer organizations for the purposes of the operation of the pooling arrangements that the social partners have intended to put in place, even the contractual acts signed by them with the insurers in order to bind the latter and to specify the stipulations of the conventional text of the branch and its effective implementation methods.
Soc. February 11, 2015 (n°14-11.409) FS-PB:
In this case, the artisan baker requested the nullity of the clause designating the insurance organization by the collective agreement due to the absence of a prior call for competition.
The Court of Cassation overturned the judgment of the Court of Appeal which made the validity of the appointment clause subject to a prior call for competition by the social partners of several economic operators. In support of its decision, the Court of Cassation, specifies that the CJEU decided, by a judgment of March 3, 2011 (Ag2r prévoyance c/ Beaudout, C437/09) that compulsory affiliation to a supplementary reimbursement scheme for healthcare costs for all companies in the sector concerned to a single operator, without the possibility of exemption, was in accordance with Article 101 of the TFEU. It held, by the same judgment, insofar as the activity consisting in the management of a scheme for the supplementary reimbursement of healthcare costs such as that at issue had to be qualified as economic, that Articles 102 and 106 of the TFEU did not object, in circumstances such as those in the case, to the public authorities investing a provident institution with the exclusive right to manage this scheme, without any possibility for undertakings in the sector of activity concerned to be exempted from joining the said scheme. Finally, according to the Court of Cassation, it follows from the provisions of Articles 102 and 106 of the Treaty that they do not impose on the social partners specific procedures for appointing the manager of a compulsory provident scheme.
Violation of the right to strike
Soc. February 11, 2015 (n°13-14.607) FS-PB:
Three days after the date announced in a strike notice, an employer noting that the strike had not started posted an information note indicating that the notice could no longer produce any effect and that no work stoppage could take place within the framework of this notice.
The union, at the origin of the notice then seized the tribunal de grande instance of a request for the condemnation of the employer to withdraw this note and to pay him damages. The Court of Appeal considered that the note infringed the right to strike and ordered the withdrawal of the information note under penalty. The Court of Cassation confirmed the judgment of the Court of Appeal and recalled that "if, in the public services, the strike must be preceded by a notice given by a representative union and if this notice, to be regular, must mention the time of the beginning and the end of the stoppage of work, the employees who are the only holders of the right to strike are not required to stop work for the entire duration indicated in the notice".
Modification of the rules of procedure
Soc. February 11, 2015 (n°13-16.457) FS-PB:
The internal regulations of a company provided that work clothes should not be worn outside the place and hours of work.
The employer had subsequently introduced an exception allowing the employee to come and leave the workplace wearing their work clothes, without submitting this modification to the health, safety and working conditions committee (CHSCT). The Court of Appeal considered that this modification was not binding on the employee. The Court of Cassation confirms the decision of the Court of Appeal and specifies that it follows from the provisions of article L. 1321-4 of the labor code that the clauses of the internal regulations can only be modified after the draft has been submitted to the opinion of the CHSCT for the matters falling within its competence.
Capacity of the CHSCT to collect damages
Soc. March 3, 2015 (n°13-26.258) FS-PB:
The Court of Cassation specifies here that the CHSCT "whose mission is to contribute to the protection of the health and safety of the company's employees as well as to the improvement of their working conditions, and which is endowed in this purpose of legal personality, is entitled to sue the employer for compensation for damage caused to him by the attack made by the latter to his prerogatives”. The question of the possibility of being awarded damages arose when the CHSCT does not have its own budget.
Compensation for violation of an employee's protective status: subject to social security contributions
2nd Civil. February 12, 2015 (n°14-10.886) F-PB:
Compensation for violation of protective status, which is not among the non-taxable compensation for personal income tax listed exhaustively in Article 80 duodecies of the General Tax Code in its applicable wording, is subject to social contributions and unemployment insurance.
Waiver of the non-competition clause
Soc. March 3, 2015 (n°13-20.549) FP-PB:
The Court of Cassation makes two clarifications in this judgment.
First of all, it indicates that "when the employment contract has been terminated by the exercise by one or other of the parties of its right of unilateral termination, the subsequent signature of a conventional termination constitutes a joint waiver of the break that occurred previously. The Court then adds that "when the employment contract provides that the employer may release the employee from the prohibition of competition either at any time during the performance of the contract or on the occasion of its termination at the latest in the letter notifying the dismissal or the same day of receipt of the resignation, it is, in the event of conventional termination, the date of termination set by the termination agreement which determines the employer's compliance with the contractual deadline”.
The Court therefore considers that in the present case, by signing a conventional breach, the parties have waived by mutual agreement the dismissal previously notified by the employer. As a result, the employer was able to legally waive the non-competition clause two days before the scheduled date of termination of the contractual relationship.
Obligation of result of the employer in terms of protection of the health and safety of the employer
Soc. March 11, 2015 (n°13-18.603) FS-PB:
In this case, an employee victim of moral and sexual harassment took note of the breach of her employment contract and seized the labor court.
The Court of Appeal held that the materiality of the harassment had been established but dismissed the employee on the grounds that the employer, who dismissed the perpetrator of the harassment, took the necessary measures to protect the employee in such a way that he did not fail in his obligation of security.
The Court of Cassation overturned the judgment, on the grounds that "the employer, bound by a safety obligation of result in terms of protection of the health and safety of workers, fails in this obligation when an employee is a victim in the workplace of actions of moral or sexual harassment by one or other of its employees, even if it would have taken measures to put an end to these actions”. It was therefore up to the court, which found that the employee was the victim of harassment, to assess whether this breach had prevented the continuation of the employment contract.
Professional nature of text messages sent or received on the telephone provided by the employer
Com. February 10, 2015 (n°13-14.779) FS-PB:
Accusing a competitor of having disrupted its activity by poaching a large number of its employees, a company was authorized by order to have a statement made at the head office of the competing company as well as on the communication tools made available to its former employees.
The Court of Appeal rejected the request for withdrawal of this authorization by the competitor. The competing company then appealed to the Court of Cassation and invoked the unfair nature of the production as evidence of SMS sent by employees or received by them using a mobile phone made available to them for their work. The Court of Cassation dismissed the appeal and specified that the text messages sent or received by the employee by means of the telephone made available to him by the employer for the purposes of his work are presumed to be of a professional nature, so that the employer is entitled to consult them outside the presence of the interested party, unless they are identified as personal.
