Annual work agreement based on days worked: conditions of validity and employer obligations

The annual work agreement based on days worked allows an employee's working time to be calculated in terms of the number of days worked per year rather than hours. However, its use is strictly regulated.

The mere presence of a fixed-rate clause in the employment contract is not sufficient. The annual fixed-rate agreement in days must be based on a compliant collective agreement, concern a genuinely autonomous employee, and be subject to effective monitoring of their workload.

Otherwise, the employer risks having the fixed-rate agreement declared null and void, ineffective or unenforceable against the employee, with the possible consequence of a claim for payment of overtime.

Which employees can enter into an annual work agreement based on days worked?

Not all employees, including managers, can be subject to a fixed number of days.

Under ArticleL. 3121-58 of the French Labour Code, the following may enter into an annual work agreement based on days worked:

• managers who have autonomy in organizing their work schedule and whose functions do not require them to follow the collective schedule applicable in their department or team;
• employees whose working hours cannot be predetermined and who have genuine autonomy in organizing their time to carry out the responsibilities entrusted to them.

Simply having managerial status is therefore not enough. Autonomy must be genuine and correspond to the conditions under which the employee actually performs their duties.

An employee who is subject, in practice, to specific hours, an imposed schedule or an organization that leaves him only limited autonomy could contest the application of the fixed rate.

A prior collective agreement is essential for the implementation of annual work schedule agreements based on days worked

Annual fixed-day agreements must be provided for by a company or establishment collective agreement or, failing that, by a sectoral agreement.

This agreement must, in particular, determine:

• the categories of employees likely to enter into a fixed-rate agreement;
• the reference period, consisting of twelve consecutive months;
• the number of days included in the package, up to a limit of 218 days;
• the processing of absences as well as arrivals and departures during the period;
• the main characteristics of individual agreements;
• the methods for evaluating and regularly monitoring the workload;
• the procedures for periodic communication between the employer and the employee;
• the procedures for exercising the right to disconnect.

It is therefore advisable to check the collective agreement and, where applicable, the agreements applicable in the company before proposing an annual fixed-day agreement to an employee.

The previous decisions that invalidated the agreements of certain sectors no longer allow, on their own, to determine the current validity of a flat rate: many agreements have been modified since the first decisions of the Court of Cassation.

A written individual annual fixed-day agreement remains necessary

The existence of a collective agreement does not exempt the employer from concluding an individual agreement with the employee.

This agreement must be in writing and require the employee's consent. It specifies, in particular, the number of days included in the package and the applicable reference period.

A simple mention of the fixed number of days on the payslips cannot replace an individual written agreement.

The employer must also verify that the functions actually performed correspond to the categories of employees covered by the collective agreement.

The workload must be subject to effective and regular monitoring of the execution of the annual work agreement in days

Article L. 3121-60 of the Labour Code requires the employer to regularly ensure that the employee's workload is reasonable and that it allows for a good distribution of their work over time.

This obligation is not limited to counting the days worked.

The system put in place must allow:

• to know the number and date of days or half-days worked;
• to monitor the actual taking of rest days;
• to monitor the extent and distribution of the activity;
• to detect an overload or abnormal organization;
• to verify compliance with daily and weekly rest periods;
• to react quickly when a problem is reported.

A statement completed by the employee can contribute to this monitoring, but it must actually be reviewed by management. Simply collecting statements without analysis or intervention from the employer does not necessarily constitute sufficient monitoring.

Is annual maintenance sufficient?

The employer must organize at least one interview per year covering:

• the employee's workload;
• the organization of his work;
• the balance between his professional activity and his personal life;
• his remuneration.

This interview must be specifically dedicated to the fixed-day contract or, at the very least, address these issues precisely and in an identifiable way.

However, the annual review does not exempt the employer from monitoring the situation throughout the rest of the year. When an overload, excessive working hours, or organizational difficulties are observed, the employer must take action without waiting for the next review.

The Court of Cassation therefore requires effective and regular monitoring to allow for timely remedying of a workload incompatible with a reasonable duration.

A report mentioning a significant workload, without any action taken to reduce it or reorganize the work, could instead establish that the employer was aware of the difficulty without responding to it.

What to do when the collective agreement is incomplete?

Since the law of August 8, 2016, certain shortcomings of the collective agreement can be compensated by a system put in place directly by the employer.

When the agreement does not sufficiently provide for the procedures for monitoring and communicating workload, the individual agreement can, under certain conditions, be strengthened if the employer:

• establishes a document showing the number and date of days or half-days worked;
• ensures that the workload is compatible with respecting daily and weekly rest periods;
• organizes an annual interview focusing on workload, work organization, work-life balance and remuneration.

Regarding the right to disconnect, the applicable procedures must be defined by the employer and communicated to the employees concerned.

However, this mechanism does not remedy all irregularities. In particular, it does not exempt employees from having a collective agreement authorizing the use of a fixed-day work schedule or from a written individual agreement.

What are the penalties for irregular annual work schedules based on days worked?

The penalties depend on the nature of the breach.

When the collective agreement does not contain sufficient guarantees and the legal safeguard mechanisms are not applicable or have not been respected, the individual agreement may be declared null and void.

When the collective scheme is valid but the employer does not comply with its monitoring obligations, the agreement may be rendered ineffective or declared unenforceable against the employee for the period concerned.

The employee can then claim the application of the ordinary rules for calculating working time and request payment for overtime, provided that they provide sufficiently precise information to support their claim.

The employer may also be subject to claims relating to compensatory rest periods, failure to comply with rest periods or the obligation of safety.

The limitation period applicable to wage claims is, in principle, three years.

Checks to be carried out by the employer for the implementation of annual work schedule agreements based on days worked

To limit the risks, the employer must, in particular, check:

1. that the use of a fixed-rate agreement is authorized by an applicable collective agreement;
2. that the agreement includes the guarantees required by the Labour Code;
3. that the employee belongs to an authorized category;
4. that he has real autonomy in organizing his schedule;
5. that an individual written agreement has been concluded;
6. that the number of days worked and rest periods are actually monitored;
7. that the workload and range of work are regularly monitored;
8. that a specific annual interview is organised and documented;
9. that the alerts raised by the employee result in a concrete response;
10. that the right to disconnect is made effective.

A periodic audit of annual fixed-day agreements and their implementation makes it possible to identify irregularities before they give rise to litigation.

Need to secure your annual fixed-day work agreements?

ARST Avocats' social law department assists employers in auditing fixed-rate agreements and conventions, setting up workload monitoring tools and managing disputes related to overtime.

Our team is available to review the applicable agreements within your company and, if necessary, propose the required corrective measures. Contact us.

Article written by Chaouki Gaddada, Partner Lawyer in charge of the social law department.