Employment law in France (fr)
Auteur : Alain-Christian Monkam
Avocat au barreau de Paris et Solicitor of the Senior Courts of England & Wales
Blog de droit du travail anglais (Blog de Monkam Solicitors)
UK companies are usually surprised to find out these employee representatives (ie"délégués du personnel") who constitute a body different from the expected works council (see below). These representatives are elected, usually on trade unions' lists, for a 4-year term and their number is proportionate to the workforce (1 representative per 30 employees on average). The company threshold must amount to 11 employees for 12 consecutive months within a 3-year period. Employer's failure to hold the ballot is a criminal offence punished by 1 year of imprisonment plus a penalty! These employee representatives provide the employer with the employees' demands and check the good application of the employment laws within the company.
A company (or its distinct establishments) must also set up a works council (ie "comité d'entreprise") for a 4-year term. The company threshold has to be 50 employees or more for 12 consecutive months within a 3-year period. The works council is made of the employer's representative, a number of employee representatives and trade unions representatives. The employer has to inform and consult the works council on a number of economic and social topics: accounts, management, TUPE, overtime, volume of part-time and fixed-term contracts, continuing professional development, equal pay, holidays, incentive schemes, employees' handbook, cafeteria and so on.... Failure to properly inform and consult the works council constitutes an offence too. The statutory resources of the works council are funded by the employer according to the global wages paid by the company.
There are 5 major trade unions (plus some minor ones) in France which may be present in the companies through their officials (ie "délégué syndical" or "représentant de la section syndicale"). These trade unions officials, which number is proportionate to the workforce, must be informed and consulted by the employer regarding a number of employment issues (working time, health and safety, equal pay...). But, their main power is to negotiate the collective bargaining agreements with the employer (or the associations of employers). The rules to appoint a trade union official are particularly complex as there are statutory requirements relating to the official himself/herself, the workforce threshold, the trade unions' representativeness.
Collective bargaining agreement
There are 3 sources of employment laws applicable to all the employees working in the French territory, regardless of their nationality: the statutes (grouped within a Code of Labor of 3,000 pages!), the collective bargaining agreements (CBAs) and the individual employment contract. The role of a CBA in France is essential because:
• almost every industries are covered by 1 or several CBAs, depending on their level of application: company, specific industrial sector or all the country.
• the provisions of a CBA always prevail over those of an employment contract which are less favorable to the employee
• a CBA applies to all the employees once it is signed by 1 or several trade unions which are "representative" at the level of application of the CBA. An employee sent abroad on assignment may also claim certain provisions of a CBA at his/her return to France if for example it sets out a right to be restated.
The labor inspector ("Direccte"), who does not exist in many jurisdictions, is an officer of the French state department of labor. His/her primary role is to regularly visit the companies in order to check the good application of the employment laws. He/she has the right to access a number of documents kept by the company and relating to the pay, the health and safety, the work-related accidents, the employees' handbook, the records of working time-rest-holidays, the minutes of the employees' representatives meetings...He/she can make recommendations, requests or warning relating to employment issues. He/she may also issue a report that will be sent to the prosecutor for legal actions. The authorization of the labor inspector is needed for the dismissal of an employee representative, of a trade union official or in case of mass collective redundancies (see below).
The "'Conseil de Prud'hommes" is the French employment tribunal which decides employment issues between the employer and the employee. The employees do not need to comply with a prior seniority requirement for being entitled to the unfair dismissal legislation. There's no cap on the compensations for unfair dismissal ordered by the tribunal. On the contrary, there is a minimum of 6-month wages compensation where the employee is found to having been unfairly dismissed, provided such employee has a minimum of 2 years of service.
Where a company of 50 or more employees considers to make redundant more than 10 employees within a 30-day period, it must consult with the works council on the "plan de sauvegarde de l'emploi" (article L 1233-61 of the French Code of Labour). Such redundancy plan precisely sets out the measures to avoid, reduce or mitigate the effects of the dismissal or redeploy the employees in the company or in the group. The plan is either negotiated with the trade unions having a majority in the company or unilaterally proposed by the employer. The French Labour administration 'Direccte' must validate the plan.
Other surprising characteristics
• the working time is 35 hours a week; there is a statutory limit of overtime amounting to 220 hours per year and per employee (a CBA can lower or increase this limit);
• a fixed-term contract is renewable only once (except for particular statutory situations);
• a competition clause is unenforceable if the contract of employment does not provide a compensation of the employee; such compensation (usually set out in the applicable CBA) amounts to 30 to 60 % of the wage and is payable monthly at the termination of the employment contract for the duration of the clause;
• all the procedures of individual dismissal are subject to time limits;
• there is no statutory right to appeal an employer's decision of termination of the employment contract;
• provided a seniority requirement, the employer must pay the employee a termination pay which amounts to a minimum of 20% of the monthly wage per year of service .
Recent and coming legislative changes
• an important law ("loi sur la sécurisation de l'emploi") was adopted on 14 June 2013:
- companies are allowed to sign agreement with the trade unions providing the temporary increase of the working time or a negotiation on wages in compensation of the employer's commitment to maintain the jobs;
- the procedure of collective redundancy should be agreed either with the trade unions representing no less than 50 % of the employees or with the labor administration;
- companies whose workforce amounts to 10,000 employees worldwide or 5,000 in France are requested to elect 1 to 2 employee representatives to the French management committee ("Conseil d'administration");
• An important draft law is being discussed in the French Parliament "projet de loi pour la croissance, l'activité et l'égalité des chances économiques". This draft law, said 'Loi Macron', would introduce liberal reforms such as:
- employers and employees should be offered the possibility of alternative dispute resolutions; instead of applying first to the employment tribunal, the parties could settle their issues via a mediation or a 'procedure de convention participative' enforced by the Tribunal;
- the employment tribunal would be offered a guide to decide the level of compensations; based on the seniority of the claimant employee, such guide would lower the uncertainty of the French employment Tribunal decisions;
- after the current step of early conciliation, the employment tribunal would also have the power to speed up the procedure so that the case would decided within 3 months by a restricted panel of 2 judges.
• Another draft law would also introduce important changes "projet de loi relatif au dialogue social et à l'emploi", for examples:
• the 29 various issues on which the employer must consult the employee and union representatives would be grouped within 6 topics in order to lower the heavy consultation burden on the employer;
• where a company has less than 11 employees with no employee representative, these employees might still be represented by regional commission;
• where a company has more than 300 employees, it would have the possibility to group the works council, the employee representatives and the health and safety committee within a "DUP Délégation Unique du Personnel" • where a company has more than 300 employees, an agreement could provide the grouping of various employee representatives by establishment.
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