The industrial and commercial public establishment “Réunion des musées nationaux” (RMN) recruited security guards for exhibitions, by fixed-term contracts. Those employees worked in the national gallery of the Great Palace during the temporary exhibitions periods.
The employees referred the case to the French employment tribunal (“Conseil des prud'hommes”) to ask for a re-skilling (“re-qualification”) of their contracts in open-ended contracts. Then, an appeal was lodged and the Court of appeal admitted the re-skilling in open-ended contracts. The decision of the Court of appeal has been confirmed by the French Supreme Court.
The question asked to the Court was this one: Can an employer use fixed-term contracts for a temporary increase of activity, to employ security guards during yearly, temporary and organised exhibitions?
The Supreme Court, in a decision of December 10th 2008 (n°06-46.349 and n°06-46.360), takes up the decision grounds of the Court of appeal and states that the temporary exhibitions of the RMN regularly happened, at the same frequency each year, on the same annual periods, at the same place and following the same organisation.
Consequently, even if each exhibition was temporary, all the exhibitions constituted a permanent activity, and not a casual one. Even if the exhibitions were intermittent, they were included into the same mission.
Moreover, there was no documentary evidence to prove that the employees were recruited only because of an increase of activity.
For those grounds, the Court confirms the decision to re-skill the contracts in open-ended contracts.
To conclude, the use of fixed-term contracts for cyclical variation of activity is admitted, and it is what the employer invoked. Nevertheless, the Supreme Court has a limited interpretation of the variation of activity which must be unforeseeable (see the case law Soc. January 21st of 2004 n°03-42.769).
As a conclusion, an employer cannot recruit by fixed-term contracts when he regularly programs a temporary activity in a foreseeable way, which excludes variation in the normal activity of a firm.
Frédéric CHHUM Avocat à la Cour
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