(French Supreme Court, Social Division, 31st January 2012, Nos. 10-19.807 and 10-17.593)
Although, in its judgment of 29th June 2011 (see our Newsletter of September 2011), the French Supreme Court did not call into question the principle itself of having forfait(s)-jours agreements, it did lay down conditions for their validity, and it has just reinforced those conditions in two judgments of 31st January 2012:
- in the first case (No. 10-19.807), the Supreme Court called into question the validity of forfaits-jours after having noted that neither the agreement at branch level (in the chemicals industry), nor the agreement at company level set the terms of implementation and of control of the number of days worked and of the minimum daily and weekly rest periods, those agreements merely indicating that the individual forfait agreements entered into with the employees should set those terms;
- in the second case (No. 10-17.593), the forfait-jours was invalidated because it had not led to an individual forfait agreement being signed, the employment contract limiting itself to indicating that the company-level RTT (working time reduction) agreement should be referred to.
In a judgment of the same day (No. 10-24.412), the Supreme Court also invalidated a “tous horaires” (“all hours”) forfait scheme applied to an executive who was classified as a manager (excluded, in that capacity, from the regulations relating to working time, except paid leave). Contrary to the position taken by the company, which deemed that the employee satisfied the conditions laid down by Article L. 3111-2 of the Code du Travail (French Labour Code) (namely a large degree of independence in organising working time, decisions made largely autonomously, and pay among the highest levels), and could therefore have the status of management executive, the Supreme Court considered that the only people who can receive that status are executives who actually take part in the management of the company - e.g. as members of the management board or executive body – which was not so in this case.
The Supreme Court has thus paved the way for numerous disputes on overtime back payment, and also for damages for breach of maximum working times and minimum rest times, and for undeclared work.
On this subject, it has just been ruled that when an executive regularly works more than ten hours a day without a proper forfait agreement, intentional undeclared work is established (Supreme Court, Social Division, 28th February 2012, No. 10-27.839).
In order to avoid such convictions, which can be very costly since they can involve numerous employees, firms really need to limit forfaits to executives who are genuinely autonomous or managerial, and be able to evidence, in particular, compliance with maximum working times and with minimum rest times.