The validity of annual package agreements in days

Update on the latest developments in case law which has invalidated in several sectors this derogation from the legal working hours.

Reminders of the conditions for using annual flat-rate agreements

The law authorizes the conclusion of individual flat rate agreements, in hours or days, over the year when (C. trav. art. L 3121-39):
– it is provided for by a collective company or establishment agreement or, failing that, by a convention or branch agreement;
– this prior collective agreement determines the categories of employees likely to enter into an individual flat rate agreement, as well as the annual working time from which the flat rate is established, and sets the main characteristics of these agreements.
It is also necessary:
​​– the agreement of the employee and a written document (C. trav. art. L 3121-40);
– that an individual interview be held each year with each employee who has concluded a fixed-rate agreement in days over the year and relating to the employee's workload, the organization of work in the company, the relationship between the professional activity and personal and family life, as well as on the remuneration of the employee (C. trav. art. L 3121-46).

The judgment delivered by the Court of Cassation on June 29, 2011

It was in a landmark judgment of June 29, 2011 that the Court of Cassation inaugurated a review of the validity of individual fixed-price agreements (Cass. soc. June 29, 2011 No. 09-71107 FS-PBRI).
It has in fact been held that:
– the right to health and rest is among the constitutional requirements;
– it follows from the aforementioned articles of the European Union Directives that the Member States may derogate from the provisions relating to the duration of working time only in compliance with the general principles of the protection of the safety and health of the worker;
– any fixed-rate agreement in days must be provided for by a collective agreement, the stipulations of which guarantee compliance with maximum working hours as well as daily and weekly rest periods.

On the basis of these principles, themselves taken from constitutional and European standards, the Court of Cassation exercised a double control by examining:
– whether the provisions of the collective agreement in question were in themselves such as to ensure the protection of employee health and safety;
– whether the employer had complied with the obligations imposed by this collective agreement.

Failing this, the annual package agreement is “ineffective”. This entails the application of the legal working time and therefore, potentially, the payment of overtime worked for 5 years (3 years with the entry into force of law n° 2013-504 of June 14, 2013 and except provisions transients). It is up to the employee to provide proof of the existence of these overtime hours (Cass. soc. June 5, 2013 no. 12-14729).

It should be noted that the Court of Cassation now introduces a distinction in the sanction depending on whether the contractual provisions are invalid, in which case the sanction is the nullity of the individual fixed price agreement and the hypothesis that these contractual provisions are valid but not or incorrectly applied. by the employer, in which case the flat-rate agreement is simply rendered ineffective (Cass. soc. 24 April 2013 no. 11-28398).
The difference: any package agreement concluded on the basis of invalid contractual provisions is void until at least one company agreement has been concluded on the basis of which new package agreements can be concluded. The flat-rate agreement based on valid contractual provisions is ineffective to the extent of the employer's ignorance of the obligations imposed.

The collective agreements examined

It is therefore at the option of the cases submitted to it that the Court of Cassation validates or invalidates the contractual provisions authorizing the use of individual lump sum agreements.
metallurgy were validated (Cass. soc. 29 June 2011 cited above).
Conversely, the provisions of:
– Article 12 of the framework agreement of February 8, 1999 on the organization and working hours in the chemical industry (Cass. soc. January 31, 2012 no. ° 10-19807 FS – PBR);
– the agreement to reduce working hours in wholesale businesses (Cass. soc. 26 September 2012 no. 11-14540 FS-PB);
– Article 4 of the agreement of June 22, 1999 relating to working hours, taken pursuant to the national collective agreement known as “ Syntec ” of December 15, 1987 (Cass. soc. April 24, 2013 No. 11-28398 FS-PB).
In these last three “sectors”, any package agreement based solely on the provisions referred to must be considered void.

The cures

In the event of a defect affecting the contractual provisions themselves, and unless there is a new agreement at branch level, it is recommended to regularize the situation by concluding a company agreement respecting the requirements laid down by case law with regard to the workers' right to health and rest.
It will also be appropriate for the employer to implement a system for monitoring working time in such a way as to make it possible to identify the workload and the distribution of the manager's work as well as his amplitudes of work and to demonstrate, in the event of a dispute in particular , that this monitoring has been carried out.