NewsletterNewsletter No.153 – September 2021
PROCEDURE: Appointment of union defenders.
Article L. 1453-4 of the Labor Code used to provide, since 22 December 2017, that union defenders, authorized to assist and represent litigants before labor courts and courts of appeal in labor matters, were included on a list drawn up by the administrative authority “on the proposal of representative organizations of employers and employees at national and inter-professional level, national and multi-professional level or in at least one branch“. Being asked a priority question of constitutionality, the Constitutional Council has just declared that the following words were contrary to the Constitution: “representative at national and inter-professional level, national and multi-professional level or in at least one branch“. From now on, all unions, whether representative or not, may therefore appoint union defenders (CC. 14 Sept. 2021, No. 2021-928 QPC, Official Journal of 16 Sept.).
BUSINESS EXPENSES: Clarification regarding the conventional long-distance travel allowance.
The national collective agreement for construction workers provides for a long-distance travel allowance for employees who work on a metropolitan site whose remoteness prohibits them – given the available means of public transport – to return to their metropolitan place of residence every evening. In this case, an employer considered that it did not owe said allowance to its employees, on the grounds that they could use carpooling. According to the French Supreme Court (Cour de cassation), carpooling does not constitute public transport and therefore does not fall into the category of usable means of transport referred to by the collective agreement (Cass. Soc. 15 Sept. 2021, No. 20-14.326).
PROFESSIONAL ELECTIONS: New priority question of constitutionality (QPC) relating to the representation of senior executives.
The Cour de cassation has just submitted to the Constitutional Council the question relating to the constitutionality of the exclusion of senior executives from registration on the electoral rolls for election to the Economic and Social Committee (CSE) of an establishment (Cass. Soc. 15 Sept. 2021, No. 21-40.013).
STAFF REPRESENTATIVES: Trade unions in companies with less than 50 employees.
Article L. 2314-2 of the Labor Code provides that “each representative trade union organization in the company or establishment may appoint a trade union representative on the committee“. Article L. 2343-3 paragraph 1 of the same code specifies that “each representative trade union organization in a company or establishment of at least fifty employees, which constitutes a trade union section, appoints from among the candidates for professional elections who have collected personally and in their college at least 10% of the votes cast in the first round of the last elections to the social and economic committee, regardless of the number of voters, within the limits set at Article L. 2143-12, one or several union representatives to represent it before the employer”. Article L. 2143-6 paragraph 1 provides, on the other hand, that “in establishments employing less than fifty employees, the representative unions in the establishment may appoint, for the duration of his/her term of office, a member of the delegation staff on the social and economic committee as union delegate”. For the first time, the Cour de cassation specifies that the combination of these texts does not make it possible to appoint a union representative to the CSE in companies with less than 50 employees (Cass. Soc. 8 Sept. 2021, No. 20-13.694).
WORKING TIME: Part-time work and monthly count.
An employee demanded the conversion of his part-time employment contract into a full-time contract on the grounds that the number of additional hours he had worked had brought the weekly working time to the level of the legal one. The trial judges rejected this request, considering that, since the employee’s working time was fixed monthly, working more hours than the legal weekly duration during one week, while the monthly schedule remained unchanged, may not lead to the conversion of the employment contract into a full-time one. However, according to the Cour de cassation, the Court of Appeal having noted that “the employee had worked 1.75 additional hours in February 2015 and that during the first week of said month, the employee had worked 36,75 hours so that working additional hours had had the effect of bringing the duration of the work performed by the employee to a level higher than the legal duration of work”, “it should have deduced that the part-time employment contract should, from this overrun, be converted into a full-time employment contract ” (Cass. Soc. 15 Sept. 2021, No. 19-19.563).
EMPLOYMENT CONTRACT: Clarification relating to the early termination of a fixed-term contract (CDD).
Article L. 1243-4 of the Labor Code notably provides that “the early termination of a fixed-term employment contract which occurs at the employer’s initiative, except in cases of serious misconduct, force majeure or unfitness established by the occupational doctor, entitles the employee to damages in an amount at least equal to the remuneration he would have received until the end of the contract”. According to the Cour de Cassation, this text does not limit the employee’s loss to only the remuneration of which they would have been deprived, so that they may claim compensation for other losses, as long as they provide proof of their direct and certain nature and that they constitute an immediate and direct consequence of the non-performance of the agreement (Cass. Soc. 15 Sept. 2021, No. 19-21.311).
OCCUPATIONAL HEALTH: Reinforcing prevention in occupational health.
The main objectives of this reform, which should come into force in March 2022, are to reinforce prevention within companies, “decompartmentalize public health and occupational health“, and fight against professional disintegration by reorganizing notably the governance of prevention and occupational health. Among the new measures one shall note the reorganization of risk assessment and of the single document, the reinforcement of the role of the CSE regarding prevention matters and the reorganization of the role and operation of the occupational health services, renamed “occupational health and prevention services” (Law No. 2021-1018 of 2 August 2021, Official Journal of 3 August).
COVID-19: Adjustment of emergency measures regarding partial activity.
The benefit of long-term partial activity is now open to employees with fixed-term contracts for a seasonal job benefiting from a guarantee of renewal of their employment contract and, in branches where seasonal employment is particularly developed and in the absence of a guarantee of renewal of their employment contract, to those who have worked or are currently working for at least two same seasons in the same company over two consecutive years. In addition, several measures resulting from the law of 17 June 2020 are extended until 31 December 2022 (Order No. 2021-1214 of 22 Sept. 2021, Official Journal of 23 Sept.).