Article 14 of the Collective Bargaining Agreement for Hotels, Cafes, Restaurants clarifies the use of extras: "[…] An extra is employed for the necessary duration to the completion of his/her mission. […] An extra that would be committed, by the same establishment, to missions that last more than 60 days in one civil quarter, will be able to claim for the requalification of his/her employment agreement into an indefinite term employment agreement […]".
Judges had the opportunity to remind this rule in a recent decision:
In the case concerned, an employee had been employed through successive fixed term employment agreements as an extra during 4 years, with the same employer. Facing the refusal of the latter to offer him additional fixed term employment agreements, the employee filed a claim before the French Labor court.
The French Labor court accepted his request of requalification into an indefinite term employment agreement, due to the non-compliance with the provisions of the Collective Bargaining Agreement. By a decision dated February 10, 2016, the French Cour de Cassation confirmed this decision, considering that "the employer did not comply with the provisions of the Collective Bargaining Agreement for Hotels, Cafes, Restaurants that limit to sixty days over a same civil quarter the duration of fixed term employment agreements".
This decision was also the opportunity for the French Cour de Cassationto bring up the question of legal action of unions.
Indeed, Article L. 2132-3 of the French Labor Code provides that unions"can, before all jurisdictions, exercise all the rights belonging to the plaintiff concerning the facts that cause direct or indirect damage to the collective interest of the profession they are representing".
In the case at hand, the competent French Labor court had sentenced the employer to pay damages to a local union (CGT Nantes), because of the prejudice to the collective interest of the profession. The employer considered that the requalification into an indefinite-term employment contract and its consequences only concerned the personal interests of the employee, not the collective interest of the profession.
The French Cour de Cassation rejected this argument, considering that "if only the employee can be entitled to request the requalification of a fixed term employment agreement into an indefinite term employment agreement, the non-compliance with the provisions of the collective bargaining agreement regarding the use of fixed term employment agreement is a violation to the collective interest of the profession".
Cass. soc., February 10, 2016, n°14-26.304