The employees who have autonomy in the organization of their working time can benefit from an annual working time scheme set in days, named "convention de forfait en jours sur l'année". This enables to calculate their working time on the basis of a maximum numbers of days worked over the year, instead of on an hourly basis. The employees who benefit from such a scheme are not subject to overtime regulations.
Two conditions are required for an annual working time scheme set in days to be valid: the existence of a prior collective bargaining agreement (at the branch or company level), and the employee's consent (made formal in the employment agreement or in an addendum to the employment agreement).
The Collective Bargaining Agreement for Hotels, Cafes, Restaurants provides an annual working time scheme set in days that enables the companies of the sector to use (subject to the concerned employee's consent) this working time scheme.
Over the past years, the French Cour de Cassation canceled several branch collective bargaining agreements relating to annual working time scheme set in days, considering that the provisions of such agreements were not sufficient to guarantee the health and safety of employees (in particular when such agreements did not allow to ensure that the concerned employees would benefit from the minimum daily and weekly rest durations).
By a decision dated July 7, 2015 (Cass. soc. July 7, 2015, n°13-26.444), the French Cour de Cassation canceled the provisions of the Collective Bargaining Agreement for Hotels, Cafes, Restaurants relating to annual working time scheme set in days, considering that they did not ensure that the employee's workload would remain reasonable, and that the working time was well allocated.
Further to this decision, the provisions of the employment agreements or addenda to employment agreements providing for such scheme, based on the provisions of the Collective Bargaining Agreement for Hotels, Cafes, Restaurants could therefore be challenged by the employees concerned, who could consider that they should have been subject to the legal working time and claim back payment for the overtime hours worked over 35 hours per week.
To correct this situation, the trade unions (employers and employees representatives) of the branch of Hotels, Cafes, Restaurants entered into a new branch collective agreement on December 16, 2014 (Addendum n° 22 dated on December 16, 2014), to secure the annual working time scheme set in days, by providing a number of additional measures to ensure the health and safety of employees.
Published on March 8, 2016, a Government Decree made this agreement mandatory for all companies of the sector, subject to clarification "by way of company or establishment level agreement or new branch collective bargaining agreement, regarding the practical terms and conditions to track the employee's workload, according to case law requirements regarding health protection and safety of employees".
Cass. soc. July 7, 2015, n°13-26.444
Government Decree dated February 29, 2016, JORF n°0057 dated March 8, 2016.