The conventional break doesn't aim amiable break, neither the collective agreement of manpower planning.
But on the other hand, the conventional law is possible to the protected staff representatives.
In this case the work inspector is competent to according an authorization for the certification of the agreement.
Step 1: The preparatory discussion
Such discussion is not subject to a particular formalism.
Such discussion takes place during one (or several) meeting(s).
But, the parties (i.e. the employer or the employee) can have a counsel; for the employee, this can be a member of the staff representatives, a union delegate or an employee of the company.
If the company has not staff representatives, the employee can to be assisted, during such discussion, by an “exterior counsel” (“conseiller extérieur”) registered on a list available to the administrative authority.
For the employer, he can be assisted (if the employee is assisted) by a member of the company.
Step 2: The conventional breach agreement
Such convention must contain compulsory provisions (the amount of the indemnity, the date of the breach, signature by both parties with the mention “read and approved” (“lu et approuvé”).
Step 3: The right to retract during a 15 day time limit
After the signature of the conventional breach agreement, the parties have a right to retract during a 15 day time limit.
This right must be exercised by a letter send by all means.
Step 4: The certification of agreement by the labour authority and date of breach of contract
The next day after the delay of retractation, the employer or the employee must send a request of certification for such breach agreement to the labour authority.
The authority has 15 days to check the validity of the agreement.
It checks if the case is receivable and if the demand is valid (free willingness of the parties, the amount of the indemnity...). The silence of the authority after the 15 day delay means acceptation of the certification.
The contract of employment can be terminated the next day after the certification of the agreement or, if the administration keeps the silence, after the delay of cheeking (15 days).
It should be noted that the parties can challenge the agreement before the Labour Tribunal and during 12 months from the signature of the agreement.
Frédéric CHHUM avocat à la Cour
tel 01 42 89 24 48
e-mail : firstname.lastname@example.org