The article L.3111-2 of the French Labour Code defines the senior executive (“cadre dirigeant”) notion. It excludes them from the field of the titles II (working hours, distribution and organisation of hours) and III (weekly day off and bank holiday) of the thirst part of the French Labour Code.
In the decision of the 13rst January 2009 (n°06-46.208 P+B+R), of the Social Chamber of the French Supreme Court, in its ratio decidendi, reminds this definition of the senior executive.
Indeed, the Court states that « are considered as senior executives, executives to whom are entrusted responsibilities whose the importance involved a great independence in their timetable organisation, who are authorized to take decisions in a widely autonomous way, and who received a wage situated at the highest level of the wage systems practiced in their enterprise or establishment ».
The Supreme Court reminds that those criterions are cumulative.
Finally, the French Supreme Court states that « the judge has to check clearly the real employment conditions of the concerned employee, no matters if the applicable collective agreement deducts the position of senior executive regarding to the function holding by the employee ».
In this case, the judges should have to check if the real employment conditions of the employee justified the senior executive qualification, before rejecting a request for payment of RTT (reduce of working time) compensation.
When the judges rule cases opposing an employer and a senior executive, they have to check exactly the conditions of the article L.3111-2 of the French Labour Code which are cumulative. They cannot be linked with the terms of a collective agreement.
As a conclusion, none can be senior executive at will, the conditions have first to be fulfilled.
Frédéric CHHUM Avocat à la Cour