Entering into New Collective Agreements will now be Easier in France

Wednesday, December 21, 2016 | Published by

Act of Parliament known as the “loi Travail” – new arrangements for conventions de forfait en jours

In principle, working hours in France are recorded on a weekly basis, in hours.  Unlike many other countries though, arrangements known as conventions de forfait are possible, i.e. lump-sum remuneration agreements, designed to cover X number of days or hours of work:

  • on a weekly or monthly basis:  the convention de forfait sets out the amount of overtime covered by lump-sum remuneration, and the base wage used for purposes of calculating said lump-sum;
  • on an annual basis, in hours (known as forfait heures):  such arrangements are restricted to certain staff members, and must be covered by a company-, establishment- or branch-wide agreement.  The staff member’s remuneration may not be less than the minimum wage in force within the company for the number of hours covered by the forfait, plus overtime surcharges.  The cap on working hours on a weekly and daily basis applies, as do the rules on daily and weekly rest.
  • on an annual basis, in days (forfait jours):  this is restricted to certain staff members and must be covered by a company-, establishment- or branch-wide agreement.   No other country is known to have such arrangements in force.

Forfait jours arrangements – litigation

Forfaits jours arrangements have given rise to a considerable amount of litigation, on the basis that in relation to the workload, the collective agreements have failed to provide for sufficiently tight monitoring or follow-up, contrary to EU Directive 2003-88 dated 4th November 2003 on working hours:  Member States may not derogate from the provisions on working hours, unless they respect the general principles designed to protect health and safety.

Faced with unfavourable judgments, awkward situations have cropped up for the employer:  although they had thought the conventions de forfait complied with the law, they find themselves faced with individual agreements – signed by the staff members concerned – which may be open to challenge, the company- or branch agreements having been struck down.

The Act of Parliament known as loi n° 2016-1088 du 8 août 2016 or loi Travail redrafts the Labour Code in this respect, enriching the contents of collective agreements designed to authorise forfaits annuels en jours while “nailing down” the arrangements by dealing with the issues that have arisen.

Amending the contents of collective agreements

As before, prior to instituting forfait-jours arrangements within a given company, there must be a company-, establishment- or branch-wide agreement in force.

Until now, the Labour Code required that the collective agreement define, at the very least:

  • staff categories eligible for such a convention de forfait,
  • number of days or hours included in the forfait,
  • main elements of the forfait

For agreements signed after 10 August 2016, the loi Travail adds further clauses:

  • for remuneration purposes, how any days the staff member may have taken off work, or the fact of his joining or leaving the firm during the relevant period, will be taken into account,
  • the reference period covered by the forfait jours arrangements (calendar year, or twelve consecutive months),
  • arrangements for evaluating and monitoring the workload,
  • opportunities provided for the employer and employee to regularly discuss the workload, and the balance between work and private life,
  • arrangements for exercising the right to log-off business communications equipment.

Where a collective agreement is amended in line with the aforesaid requirements, the staff member’s consent will not be required for his individual forfait jours arrangement to remain in force.

Entering into forfait jours arrangements will now be easier

Under the new Act of Parliament, should a collective agreement not include the aforesaid terms in respect of evaluating and monitoring the workload, forfait jours agreements may nonetheless continue in force, or be entered into (Labour Code, Section L.3121-65).  Heretofore, the Supreme Court (Cour de cassation) had not admitted such a possibility (Cass. soc. 31 janvier 2012, n°10.19807).

In other words, where a new company-wide agreement is signed, but lacks the aforesaid terms, the employer may henceforth “nail down” the relevant forfait jours agreements, provided he complies with at least four fundamental rules:

  • the number of days and half-days put in and rest days taken, must be reported in writing,
  • the workload must be compatible with mandatory rest-periods,
  • at least one annual review must be held with the staff member to discuss his workload, how his tasks are organised, the balance between work and private life, and remuneration,
  • the arrangements for his exercising the right to log-off business communications equipment.

The new framework for “nailing down” forfaits jours arrangements have been welcomed enthusiastically: the latter may henceforth be pursued, or entered into, without the employer needing to launch negotiations in view of a fresh collective agreement.