A very recent decision from the French Supreme Court reminds us of the rules applicable to annual day packages. (To read the French version, please click here.)
If this decision, rendered on 24 April 2013, “invalidates” the provisions of the collective bargaining agreement (hereafter “CBA”) for « Syntec » (Service industry sector) on annual day packages, and has an immediate effect for the companies covered by the Syntec CBA, the risk should be increasingly anticipated by employers covered by other CBAs.
According to the French Supreme Court, annual day packages are enforceable and valid only if the provisions of the collective bargaining agreement guarantee that the employees’ work time and workload are reasonable and ensure a fair sharing of the work between the employees in order to protect their health and safety. In this decision, the annual day package was considered null and void because neither the Syntec CBA nor the company-wide collective bargaining agreement provided these kinds of guarantees.
The criteria defined and used by the French Supreme Court to establish the validity of an annual day package now constitute a constant position.
Indeed, this case law was initiated by an earlier French Supreme Court decision in June 2011involving a case where the employer applied the CBA for metallurgy, even though the court ruled that the provisions were sufficient to guarantee the protection of the employees’ health and safety. Using the same approach but reaching different outcomes, the French Supreme Court in two decisions dated 31 January and 26 September 2012, considered that the provisions of the CBA’s for chemical and wholesale did not provide sufficient protection of the employees’ health and safety.
The consequences are significant, since the employees individually will obtain the nullity of their annual day packages. This nullity will place the concerned employees under the standard working time regime (hourly wages).
The impact on current employment relationships, as well as past employment relationships (within the statutory limitation of five years), is that employees will be able to individually claim for:
- Backpayment of salary for overtime performed over 35 hours a week, with application of the increased rates;
- Backpayment of the related indemnity in lieu of paid vacation for this overtime;
- Damages for non-compliance with the provisions on mandatory rest (“repos compensateur”) when the overtime performed exceeded the legal or conventional annual limit (“contingent annuel d’heures supplémentaires”);
- Damages for non-compliance with the provisions on working time; and
- Potentially, an indemnity of six month-salary for illegal work (because of the non-payment of the overtime).
The consequences of the ruling for future employment relationships is that employers will need to ensure that the required conventional guarantees are in place.
We can anticipate that negotiations will occur at the sector-wide level to amend the CBAs. Syntec negotiations seem to have been initiated already, but these negotiations – aimed to achieve a more global revision of the provisions of the Syntec CBA – may take time. To our knowledge, the employers’ unions and the employees’ unions for the chemical and wholesale industry sectors do not currently have new provisions enabling a valid implementation of the annual day packages. Other CBAs may also be under the same threat.
In this context, employers should consider the possibility of concluding a company-wide collective bargaining agreement, or else modifying the agreement if one is already in place, to benefit from the conventional guarantees required by French case law. The final action on this front would be to include addenda to all employees’ employment contracts to ensure that their annual day packages are valid under these new provisions.
(Cass. Soc. 29 juin 2011, n°09-71107 ; Cass. Soc. 31 janvier 2012, n°10-19807 ; Cass. Soc. 26 septembre 2012, n°11-14540 ; Cass. Soc. 24 avril 2013, n°11-28398)