1. Invalidations of day passes:
- National collective construction agreement
- Collective agreement for the retail and wholesale trade predominantly in food
2. Equal treatment:
- Difference of benefit between professional categories
- Within the same professional category
3. Obligation to set up a CHSCT
4. Effect of the termination of the employer's activity on the non-competition clause
5. Modalities for waiving the non-competition clause
6. Obligation to supply work by the employer and purpose clause
1. Invalidations of day passes
- National collective construction agreement
Soc.
December 17, 2014 (No. 13-23.230) FS-PB: The Court of Cassation confirms the decision of the Court of Appeal which invalidates the mechanism for recourse to the fixed daily rate provided for by the national collective building agreement (IDCC 1596).
Indeed, the national professional agreement which provides only that the employment contract must allow the employees concerned freedom in the organization of part of their working time is not such as to ensure the protection of safety and the health of the employee subject to the plan of the fixed rate in days.
In addition, the court specifies that the methods of implementation of the day package cannot be fixed by a memorandum.
- Collective agreement for the retail and wholesale trade predominantly in food
Soc.
February 4, 2015 (n°13-20.891) FS-PB: The provisions of the collective agreement for the retail and wholesale trade predominantly in food (IDCC 2216), relating to the fixed rate in days, provide, with regard to monitoring the load and scope of work of the employee concerned, an annual interview with the line manager.
The provisions of the company agreement provide for the organization of the activity of the employees concerned over five days, so that they can effectively exercise their right to weekly rest and the establishment of a document summarizing their presence on the 'year. According to the Court of Cassation, these provisions are not such as to guarantee that the scope and workload remain reasonable and ensure a good distribution, over time, of the work of the person concerned. These provisions do not contribute to ensuring the protection of the safety and health of the employee. As a result, the fixed-rate agreement in days is void.
2. Equal treatment
- Difference of benefit between professional categories
Soc.
January 27, 2015 (n°13-22.179) FS-PBRI: The Court restricts the scope of its case law (Soc. June 8, 2011 (n°10-14.725) FS-PBRI and (n° 10-11.933) FS -PBRI), according to which, the principle of equal treatment precludes differences in treatment between professional categories, unless these differences are based on objective reasons.
The position of the Court is now as follows: "the differences in treatment between professional categories operated by means of conventions or collective agreements, negotiated and signed by representative trade unions, vested with the defense of the rights and interests of employees and the authorization of which the latter participate directly by their vote, are presumed to be justified so that it is up to the person who contests them to demonstrate that they are unrelated to any consideration of a professional nature” .
- Equal treatment within the same professional category
Soc.
January 27, 2015 (No. 13-17.622) FS-PB: In this case, a mutual company employed employees in the same category with different legal statuses.
These schemes were then harmonized but some employees went to the industrial tribunal to obtain the payment of damages to compensate for the loss resulting from the difference in treatment from the date of their hiring until the date of harmonization of regimes. The Court of Cassation overturned the judgment of the Court of Appeal rejecting their request. In support of its decision, the Court of Cassation specifies on the one hand that " for the attribution of a particular advantage, a difference in legal status between employees placed in a comparable situation with regard to the said advantage, is not sufficient , on its own, to exclude the application of the principle of equal treatment, on the other hand, that it is up to the employer to demonstrate that the difference in treatment between employees placed in the same situation with regard to the disputed advantage is based on objective reasons, the reality and relevance of which the judge must verify ”.
3. Obligation to set up a CHSCT
Soc.
December 17, 2014 (n°14-80.532) F-PBI: The Court of Cassation recalls that any employee employed by a company whose workforce is at least equal to fifty employees must come under a CHSCT.
Consequently, the decision of the company employing approximately one hundred and forty employees spread over seven sites to set up a CHSCT only on one of these sites, the only one employing more than fifty employees, is irregular.
4. Effect of the employer's cessation of activity on the
Soc non-competition clause.
January 21, 2015 (n°13-26.374) FS-PB: In this case, the employment contract included a non-competition clause for a period of three years in return for which the person concerned received compensation after the effective termination of his contract.
The contract was terminated on April 20, 2011 and the employee requested payment of the financial consideration for the non-competition obligation calculated over three years. The Court of Appeal notes that the employer was the subject of a judicial liquidation judgment on September 27, 2011 and dismisses the employee on the grounds that she is no longer bound by any obligation of non-competition at the towards a company that no longer exists.
The social chamber breaks the judgment. Indeed, according to the Court of Cassation, the non-competition clause taking effect from the termination of the employment contract, the subsequent cessation of activity of the employer does not have the effect of relieving the employee of his obligation of non-competition.
5. Terms of waiver of the non-competition clause
Soc.
January 21, 2015 (n°13-24.471) FS-PB: In the event of termination of the employment contract with exemption from the performance of the notice, the date from which it is required to respect the obligation of non-competition , the due date for the financial consideration for the non-competition clause and the date from which the reference period for calculating this indemnity must be determined are those of effective departure from the company.
Consequently, the employer who exempts the employee from the execution of his notice must, if he intends to waive the execution of the non-competition clause, do so at the latest on the date of the effective departure from the company's interested party, notwithstanding any stipulations or provisions to the contrary.
6. Wage portage: obligation to provide work by the employer and
Soc objective clause.
February 4, 2105 (n°13-25.627) FS-PB: An employee, dismissed on the grounds that he had not respected the objective clause of his employment contract which required him to conclude before the end of his mission in progress one or more new missions equivalent to five days, seized the labor court.
The employer contests before the Court of Cassation its order to pay the employee sums by way of back pay, paid leave, severance pay and severance pay without real and serious cause.
The Court of Cassation dismissed the appeal on the grounds that the conclusion of an employment contract entails for the employer an obligation to supply the work.
