The legal context
The “forfait-jours” is a particular method of organization of working time which allows the employer to calculate the employee’s working time as a number of days worked over the year rather than a number of hours over the week. This system is advantageous for employers, particularly due to the fact that regulations relating to overtime and the maximum daily and weekly working time do not apply. However, to be enforceable, this system must be provided for and organized by a collective bargaining agreement at the company or sector-wide level and must be followed by the conclusion of an individual agreement between the employer and the employee.
In this context, what happens if an employee, who is subject to this system with his/her initial employer, is transferred to another company which is not covered by a collective bargaining agreement allowing for this particular working time organization?
In the decision at stake dated 15 May, 2014, an employee was transferred to a newly created subsidiary of his initial employer. Upon termination of his employment contract with his new employer, he lodged a claim before the employment court and asked for the payment of overtime on the ground that he was no longer subject to a “forfait-jours” from the time of his transfer since the new entity was not covered by a collective bargaining agreement authorising this type of working time organization.
The Court of appeal dismissed the employee’s arguments on the basis that the employment contract of the employee was not modified upon the transfer and as a result the new employer was allowed to request the employee to work on the basis of a number of days over the year.
The Supreme Court’s ruling
The Supreme Court took a different stance and considered that the Court of appeal should have determined whether or not the new employer was subject to a collective agreement providing for the conclusion of a “forfait-jours” agreement.
Implicitly, the Supreme Court reasoning was that in the event the new employer is not covered by such a collective agreement, the conditions of validity of the “forfait-jours” are not met and therefore this working time scheme will not be enforceable against the employee. As a result, the employee would be allowed to claim the payment of any overtime worked as from his transfer to the new company. Given the broad wording of the Supreme Court’s ruling, it seems that this solution is not limited to a voluntary transfer of employment but could also apply to collective transfers and, in particular, in the context of transfers of undertakings giving rise to TUPE regulations.
In conclusion, this issue must be anticipated sufficiently in advance before any transfer of employment so as to verify the working time situation within the new employment entity. If no collective bargaining agreement allowing the entering into of a “forfait-jours” exists, then it will be necessary to modify the employee’s working time organisation post transfer. This will however require the employee’s consent to be obtained.