There has been an important change to the provisions of the national collective bargaining agreement applying to all hotel, café and restaurant businesses in France, following an agreement reached between the employer and employee representatives of industries in this sector on 20 March 2013.
Amendment 18 to this agreement now provides that, even in the event that article L.1224-1 (TUPE equivalent) does not apply, the new service provider will, in any event, be required to accept the automatic transfer of the employees previously attached to such services who were employed by the former service provider and who satisfy certain conditions. The contracts of employment transfer in the same conditions as provided by article L.1224-1, i.e. on the same terms and conditions and with a recognition of existing continuity of employment.
The provisions cover all entities in France covered by the Hotel, cafés and restaurants collective bargaining agreement.
The employees covered by such protection must however satisfy the following conditions (otherwise they remain with the previous service provider):
- have at least 6 months’ service prior to the transfer date;
- to be assigned for the majority of their time to the services transferring (other than where the parties, including the employee, agree otherwise);
- they have not been absent in the past 4 months, other than for reasons of sick leave, maternity or parental leave etc.
Elected employee representatives who transfer to the new service provider retain their elected mandate.
Both the existing and new service provider must inform and consult with their works councils (or in the absence of a works council, with the personnel delegates) in advance of the transfer date in relation to the evolution of the activity and impact on the employees. The employees themselves must also be informed in good time (and no later than the effective transfer date) of the evolution of the activity and the impact for them (i.e. if applicable, the transfer of their contract of employment).
The new service provider must make itself known to the former service provider no later than 45 days prior to the transfer date or, if later, as soon as it has knowledge of the transfer of services. Amendments to the original contracts of employments must be provided to the employees by the new service provider no later than 15 working days after the transfer date. Accrued holiday is carried over to the new contracts (funded by the former service provider). The former service provider must also provide copies of the collective agreements and customs and practices previously in place within 15 working days before the transfer date and must also pay to the employees sums in relation to pro rata bonus entitlements up to the transfer date.
The amendment will be effective once it has been formally extended and such extension published in the Official Journal (date not yet confirmed).