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.
- 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.
- 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
- International tourist areas
The bill modifies the zoning provided for by the Mallié law.
"International tourist areas" (ZTI) are thus created, delimited by the ministers in charge of labour, tourism and trade, which are characterized by: – their international influence
– the influx of tourists
– the volume of purchases made by these tourists.
These criteria are intended to be specified by decree.
- 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).
- From the CHIP to the commercial 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.
