French Labour law: Illegal flat rate agreement package (forfait jours) : an HR Director obtains a provision for overtime before Conseil de prud’hommes’ speed procedure (référés) (C. Cass May 9th 2018, n° 16-26910)

Polyclinic X .hired Mr. Y .effective January 21, 2013 as Human Resources Director.

The employment contract sets forth a flat rate agreement package (forfait jours), which was reiterated by an amendment of July 1st 2015, following the conclusion on May 23rd 2014 of a company agreement providing for such agreements.

After being dismissed, the employee filed a complaint before the Conseil de prud’hommes’ speed procedure (référé) to a provision for overtime.

By decision of 2 December 2016, the RIOM Court of Appeal ordered the company to pay such provision for overtime for the years 2013, 2014 and 2015.

The company challenged the decision to the “Court of cassation”.

In a decision of May 9th, 2018, the Court of Cassation dismissed the company's appeal.

It notes that : “that having noted that the national agreement of 27 January 2000 on the reduction of working time, applicable to the branch of private hospitalization, referred to agreements of enterprise or establishment for the establishment of a flat rate agreement and found that such an agreement was only concluded on 23 May 2014, which meant that the employer could not avail itself of the flat rate agreement included in the employment contract of 21 January 2013, in the absence of a prior collective agreement providing for it, the Court of Appeal, for these reasons alone, could hold that the obligation to pay overtime was not seriously questionable " .

The Court of Cassation concludes that "it is in the exercise of the powers which it holds of the article R. 1455-7 of French labour code that the court of appeal, which did not have to proceed to other research, has fixed the amount of the provision as the amount it has chosen.”


It should be remembered that the annual fixed rates in days are set up by a company or site collective agreement of or, failing that, by a branch agreement.

Failing this, no annual flat-rate agreement in days can be validly concluded, even with the express agreement of the employee concerned.


C. cass. May 9th 2018 16-26910


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