1. Validity of the designation of a compulsory complementary insurance organization
2. Reminder concerning the exercise of the right to strike
3. Unenforceability of a modification of the internal regulations
4. Capacity of the CHSCT to receive compensation for the damage resulting from the infringement of its prerogatives
5. Social security contributions: integration of compensation for violation of the protective status of an employee
6. Waiver of the non-competition clause
7. Obligation of result of the employer in terms of health protection and safety of the employer
8. Professional nature of text messages sent or received on the telephone made available by the employer
1. Designation of a compulsory complementary insurance organization
An addendum, extended by decree, to the collective agreement wide national network of craft businesses in the bakery and bakery-pastry sector has planned to implement a compulsory additional reimbursement scheme for health costs for employees falling within the scope 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 mutuality 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. 2. 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 not 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 ".
3. Modification of the Company's internal regulations
.
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 during working hours.
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.
4. 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 improvement of their working conditions, and which is endowed for this purpose with legal personality, is entitled to sue against 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. 5. Compensation for violation of the protective status of an employee: submission to social contributions
2nd Civ.
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 by the Article 80 duodecies of the General Tax Code in its applicable wording, is subject to social contributions and unemployment insurance.
6. 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. 7. Obligation of result of the employer as regards the protection of the health and the safety of the employer.
Soc.
March 11, 2015 (No. 13-18.603) FS-PB: In this case, an employee victim of moral and sexual harassment took note of the termination 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. 8. Professional character of SMS sent or received on the telephone made available 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 report made at the company's headquarters competitor 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.
