Newsletter No. 112 – April 2018

The CE may use a chartered accountant to assist it at the time of the consultation on the annual audit of accounts.  Nevertheless, the labor chamber specified that the CE must wait for the accounts to be provided to it to appoint this expert, otherwise the employer would not have to pay his remuneration.  We shall note that this decision predates the Rebsamen law of 17 August 2015.  Since, said consultation has been integrated into the annual consultation on the company’s economic and financial situation (article L.2312-1 of the Labor code).  The latter also gives the right to the assistance of a chartered accountant remunerated by the employer.  The new provisions do not determine the appointment procedure of the expert.  The solution laid down by the decision of 28 March 2018 thus remains fully relevant (Cass. Soc., 28 March 2018, No. 16-12.707).

Extra hours are those worked by a part-time employee in excess of the working hours provided for in the contract.  They cannot result in extending the hours worked by the part-time employee to the level of the legal working hours or, if they are fewer, to the level of the working hours set by agreement (article L.3123-9 of the Labor code).  A decision of 11 April 2018 thus states again that, when the use by the employer of extra hours results in extending, during several months, the employee’s working hours to the level of the legal working hours, the part-time contract must be converted into a full-time contract (Cass. Soc., 11 April 2018, No. 16-16.082).

An employee who signs a mobility clause must know precisely what he commits to.  This is why case law requires that the mobility geographic zone be precisely defined.  This requirement leads the French Supreme Court (Cour de cassation) to dismiss evolving clauses, along with those where the employer reserves the right to extend the area.  However, by a decision of 5 April 2018, the High Court states as a reminder that a mobility clause on the whole French territory “defines in a precise way its geographic zone of application and does not grant the employer the power to unilaterally extend the scope thereof”, although said clause does not mention the location of the potential work sites (Cass. Soc., 5 April 2018, No. 16-25.242).

Following the decision of the Constitutional council of 21 March 2018 – which validated most of the Labor code reform –, the publication of the ratification law of the Macron orders occurred on 31 March 2018.  Yet, it has significantly modified certain provisions of the orders. This text notably revises downwards the budget of the Economic and social committee (CSE), extends the possibilities to appoint a union representative, facilitates the use of teleworking, revises the collective mutually agreed termination, or even the dismissal.  On this last point, the ratification law brings the following modifications:

– Article L.1235-3 of the Labor code: from now on, to determine the amount of the compensation for a dismissal without real and serious cause, the judge may take into account the compensation for dismissal paid on termination, with the exception of the legal severance pay;

– Article L.1233-3 of the Labor code: economic hardship, technological change or the necessity to safeguard the company’s competitivity are assessed at the national territory level, except in case of fraud;

– Article L.1233-34 of the Labor code: regarding big collective redundancies for economic reasons, the possibility for the CSE to use an expertise may now concern the economic and accounting areas, along with health, safety or the effects of the project on working conditions;

– Article L.1232-6 of the Labor code: a (forthcoming) administrative order shall set the new dismissal letter templates, replacing those proposed by the decree No. 2017-1820. (L. No. 2018-217 of 29 March 2018, Official Journal of 31 March).

In order to clarify certain points, the Ministry of Employment has made “questions & answers on the RCC” available on-line.  The latter specifies notably that the RCC being disconnected from the redundancy regime and not having to be justified by economic reasons, “the agreement [providing for the conditions of implementation of the RCC] may provide for a number of voluntary redundancies larger than the number of the job cuts associated therewith”.  Hence, it is possible to “recruit for jobs that haven’t been cut and which have become vacant following the voluntary redundancy of their holders”.  Besides, in addition to the clauses required by law, the Ministry of Employment considers that the above-mentioned agreement must expressly mention that the provision excludes any dismissal to achieve the set goal of cutting jobs.  The undertaking by the employer to maintain jobs must also be expressly included in the agreement, which shall constitute a mandatory verification point by the DIRECCTE  (Questions-answers on the collective mutually agreed termination, version 13 April 2018).

The second “questions & answers” of the government concerns the CSE.  It specifies, inter alia, that the time spent in CSE meetings shall be paid as effective working time and shall not be deducted from delegation hours.  As for time spent in commissions, it shall be deducted if it exceeds a certain global duration.  Furthermore, the reform provides that the substitutes attend CSE meetings only in the absence of the incumbent.  The fascicule specifies in this respect that it however is necessary to send them the agenda for information purposes.  Another important clarification, the limitation of the number of successive mandates applies only from the creation of the CSE and does not take into account the mandates of the elected representatives of former institutions (100 Questions-answers on the Economic and social committee, version 19 April 2018).