frederic.chhum

Par frederic.chhum le 18/07/19
Dernier commentaire ajouté il y a 18 heures 36 min

On September 1st, 2019, companies between 251 and 1000 employees will have to publish their index equality Women / Men.

In the absence of publication, the penalty is the same as in the absence of any measure aimed at reducing wage differences, and may be as high as 1% of the remuneration and earnings received by the company (L. 2242-8 C.trav).

(See our article: Equal pay for women / men: how to calculate the index? Https://www.village-justice.com/articles/equality-sale-women-men-how-calculate-index.30749.html)

Decree No. 2019-15 of 8 January 2019 and No. 2019-382 of 29 April 2019 specified the implementation of the gender equality index.

This index makes it possible to calculate the pay gap between women and men in companies with more than 50 employees.

However, despite good intentions, many criticisms can be made about him.

This is the purpose of our article.

1) An irrelevant distribution of employees

The decree of June 8, 2019 allows to regroup the employees by professional categories: workers, employees, technicians / supervisors, engineers and managers.

A more detailed breakdown by branch classification or internal rating requires consultation with the CSE, which can be discouraging for the employer. (Annex 1 of Decree No. 2019-15 of January 8, 2019)

First criticism: the basics of initial comparisons are too broad and do not allow a relevant comparison of employees.

2) The weights of the indicators obscure the results

Of the 5 indicators, each represents a different level of points:

- Pay gap: 40 points;

- Difference in rate of individual salary increase: 20 points;

- Promotion rate gap: 15 points;

- Percentage of employees increased on their return from maternity leave: 15 points;

- Number of employees of the under-represented sex among the ten employees who received the highest salaries: 10 points.

But this distribution of points can allow an employer to ultimately get a good score even though the finding of inequality is present.

2.1) Obligation to increase the employees on their return from maternity leave (congé de maternité) : a non-sanctioned violation

The indicator for calculating the percentage of employees increased on their maternity leave returns is noted on 15 points.

This is a legal obligation provided for by Article L. 1225-26 of the Labor Code.

However, an employer whose score is 0/15 to this indicator may still obtain a score above 75 points.

On the other hand, an employer who would increase all her employees returning from maternity leave by an amount equivalent to 1 euro will get all the points, ie 15/15.

Second criticism: the violation of the legal obligation to increase the number of employees on their return from maternity leave has neither a pecuniary effect nor a particularly negative repercussion on the overall score of the indicator.

2.2) Application of a relevance threshold that mitigates pay gaps.

The Excel spreadsheet provided by the Ministry of Labor automatically applies what is called the "relevance threshold", which corresponds to a margin of tolerance [1].

The logic is to apply a deviation tolerance for such broad categories, grouping non-identical levels of responsibility, and not to penalize the company.

Two scenarios then appear to the employer:

It applies classical CSPs, its relevance threshold is 5%;

It applies a different distribution, finer, its relevance threshold is 2%.

However, a company that has an average pay gap of 15%, or 10% after the automatic application of the relevance threshold, can claim a score of 30/40 points and an overall score of 90/100.

Third criticism: the relevance threshold applied in terms of pay gaps makes it possible to conceal large differences that are not revealed by the final mark.

3) The indicators do not reflect the realities of the companies.

The indicators that have the most points - the gender pay gap and the individual earnings gap - overlook two very important aspects:

Part times;

The amount of the difference of increase.

In fact, this remuneration is calculated in full-time equivalent and excluded, in particular, overtime, or increases paid on Sundays or public holidays.

However, 85% of part-time jobs are held by women, erasing these structural differences is a part of the inequalities that is not taken into account [2].

Moreover, the reality of the increases is not taken into account, so that an increase in wages by the collective agreement will be considered as an increase.

As a result, according to this indicator men and women will have been increased, even if a woman will have just seen his salary revalued by ten euros, when a man will have touched him an increase of one hundred euros.

Fourth criticism: the indicators do not take into account individual growth gaps and partial times, giving a biased image of the reality of the company on gender equality.

4) The implementation of sanctions by the Labor Inspectorate a difficult project.

As for the amount of the sanctions, the control procedure and the implementation, the procedure remains unclear.

Especially since the government project projects a minimum of 7,000 inspections per year for labor inspectors [3].

Today there are just over 1,000 inspectors in France and the implementation of this decree must be done at constant strength.

Fifth criticism: the penalties provided by the deadlines granted are not dissuasive enough for companies.

5) A real lack of transparency.

The company must publish the index on its website, if it has one, or failing to bring it to the attention of its employees by any means.

The index corresponds to a score of 100 points resulting from the addition of the indicators.

Also, in our opinion, it is regrettable that the decree does not require the publication of all the indicators.

Sixth criticism: in the absence of the obligation to publish all indicators, the overall score is in no way revealing the real situation of the company.

In conclusion, despite good intentions, the Excel spreadsheet setup proposed by the Ministry of Labor and the implementation of the decree allow companies to easily hide discrepancies, and remain well below the legitimate expectations in terms of equality between women and men. / men.

Despite good intentions, the Gender Equality Index is not enough to stop wage disparities between women and men.

Frédéric CHHUM, Avocat et membre du conseil de l’ordre des avocats de Paris
Marion Simoné, Elève-avocat EFB Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
email : chhum@chhum-avocats.com
www.chhum-avocats.fr
Twitter : @fchhum
Instagram : fredericchhum

 

 

[1] Lien vers le tableur.

[2] https://www.insee.fr/fr/statistique...

[3] Objectif de contrôle des inspecteurs du travail.

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 6 jours 17 heures

To satisfy its clients, CHHUM AVOCATS (Paris, Nantes, Lille) law firm ensures a legal and judicial permanence, in labor law (negotiation of a mutual agreed termination (rupture conventionnelle), dismissal (licenciement), judicial termination (résiliation judiciaire), act of rupture (prise d'acte), transaction (settlement agreement), moral or sexual harassment (harcèlement moral et sexuel), burn out, requalification of CDD / CDDU on permanent contract, referral to the labor tribunal on the merits and summary proceedings, equality between women and men (égalité femmes / hommes), calculation of the gender equality index (calcul index égalité Femmes / Hommes), etc.), in July and August 2019.

***

CHHUM AVOCATS ensures legal and judicial permanence in labor law (droit du travail) in July and August 2019.

Frédéric CHHUM is a member of the Paris Bar Council (member du conseil de l’ordre).

A lawyer from the firm CHHUM AVOCATS can receive you quickly, by appointment, during the months of July and August 2019, for advice or litigation.

The firm Frédéric CHHUM is a labor law firm based in Paris, Nantes and Lille.

It is composed of 5 lawyers (3 lawyers in Paris, 1 lawyer in Nantes and 1 lawyer in Lille) who are fluent in English.

CHHUM AVOCATS mainly defends employees (salariés), intermittent entertainers (intermittents du spectacle), journalists, executives (cadres), senior executives (cadres dirigeants), expatriate employees, seconded employees, works councils, SSCs, unions (syndicats), CHSCT.

He pleads daily, throughout France, before the Labor Court (substantive and referred), the High Court, the Criminal Court and the Court of Appeal.

***

Do not hesitate to contact us.

Yours truly,

Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 6 jours 17 heures

Pour satisfaire ses clients, le cabinet CHHUM AVOCATS assure une permanence juridique et judiciaire, en droit du travail (négociation d’une rupture conventionnelle, licenciement, résiliation judiciaire, prise d’acte de rupture, transaction, harcèlement moral ou sexuel, burn out, requalification de CDD / CDDU en CDI, saisine du conseil de prud'hommes au fond et en référés, égalité Femmes / Hommes, calcul de l’index égalité Femmes / Hommes,  etc.), en juillet et août 2019.

***

CHHUM AVOCATS assure une permanence juridique et judiciaire en droit du travail en juillet et août 2019.

Maître Frédéric CHHUM est membre du Conseil de l’ordre des avocats de Paris.

Un avocat du cabinet CHHUM AVOCATS peut vous recevoir rapidement, sur rendez-vous, pendant les mois de juillet et août 2019, pour un conseil ou un contentieux.

Le Cabinet Frédéric CHHUM est un cabinet en droit du travail implanté à Paris et à Nantes.

Il est composé de 5 avocats (4 avocats à Paris et 1 avocate à Nantes).

CHHUM AVOCATS défend principalement des salariés, intermittents du spectacle, journalistes, cadres, cadres dirigeants, salariés expatriés, détachés, Comités d’entreprise, CSE, syndicats, CHSCT.

Il plaide quotidiennement, dans toute la France, devant le Conseil de prud’hommes (fond et référés), au Tribunal de Grande Instance, au Tribunal Correctionnel et à la Cour d’Appel.

***

N’hésitez pas à nous contacter.

Bien à vous,

Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail : chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 12/07/19
Dernier commentaire ajouté il y a 6 jours 20 heures

In a decision of May 15th, 2019 (n° 18-11.036), the Court of Cassation ruled that the compensation due to the union section representative (RSS) in case of violation of its protective status could not exceed 30 months’ salary.

1) Background

Employees holding a mandate in Article L. 2411 of the Labor Code, such as shop stewards or staff representatives, are protected against dismissal.

Thus, protected employees cannot be dismissed without the authorization of the labor inspector.

Therefore, the employee dismissed without authorization from the labor inspector can request his reinstatement.

If he does not request it, he is entitled to compensation for breach of protective status, equal to the remuneration he should have received since his eviction until the end of his period of protection.

The Court of Cassation, however, set a limit to this compensation by capping it at 30 months salary.

Applicable initially only to the elected representatives of the personnel (Cass.soc., April 15, 2015, n ° 13-24182), this ceiling was then extended to other protected employees.

The judgment of May 15, 2019 is part of this movement of harmonization. It effectively transposes the 30-month salary ceiling to union section representatives (RSS).

2) Facts and procedure

In this case, an employee is designated as a union representative on August 22nd, 2012. He is dismissed for serious misconduct on November 8th, 2012, without seeking the authorization of the labor inspector.

He appealed to the jugdment in nullity of his dismissal.

The case was brought before the Court of Appeal, which ordered the employer to pay compensation equal to the amount of wages that the employee should have received between the date of his eviction and the end of his period of protection. thirty-six months.

The employer then lodged an appeal on points of law.

3) Solution of the Court of Cassation

The Court of Cassation censored the reasoning of the appellate judges for calculating the compensation without taking into account the restriction of 30 months wages.

In its decision of May 15th, 2019, the Court of Cassation states that "the union representative who does not request the continuation of the employment contract unlawfully broken is entitled to compensation for violation of the protective status equal to the remuneration he would have from the moment of its expulsion until the expiry of the period of protection, within the limit of thirty months, the statutory minimum duration of the elected representatives of the staff increased by six months ".

The indemnity due to the union section representative in case of violation of the protective status is thus limited to a maximum of 30 months' salary.

4) Analysis of CHHUM AVOCATS (Paris, Nantes, Lille)

The 30-month salary limit, originally applicable to elected staff representatives (Cass.soc., April 15, 2015, No. 13-24182), was then extended to other types of mandates such as adviser prud'homal (Cass.soc, February 3, 2016, n ° 14-17000) or adviser of the employee (Cass soc, June 30, 2016, n ° 15-12982).

It is therefore in the interests of homogeneity that the High Court has transposed this limit to the representative of the trade union section.

Sources:

- Cass.soc., May 15, 2019, n ° 18-11036: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038507998&fastReqId=346172023&fastPos=1

 

- Article L. 2411-1 (Labor Code): https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000035652370&cidTexte=LEGITEXT000006072050&dateTexte=20180101

 

- Cass.soc., April 15, 2015, n ° 13-24182: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000030496756

 

- Cass, soc., February 3, 2016, n ° 14-17000: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000031988892

 

- Cass. soc, June 30, 2016, n ° 15-12982: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000032834207

 

Frederic CHHUM

Frédéric CHHUM Lawyer and member of the Paris Bar Council

Nina BOUILLON

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

Par frederic.chhum le 11/07/19
Dernier commentaire ajouté il y a 1 semaine 1 jour

The draft decree amending unemployment insurance was published by the newspaper Le Monde.

The social partners are to discuss it with the government on 16 July 2019.

This decree provides in particular:

- a tightening of the conditions of access to the regime;

- the introduction of the degression of benefits (from the seventh month) for the highest paid employees;

- a new method of calculating allowances.

We will publish shortly a comprehensive commentary on this draft decree.

It is available in the pdf below.

Yours truly,

Frédéric CHHUM

Frédéric CHHUM Avocat et membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 11/07/19
Dernier commentaire ajouté il y a 1 semaine 1 jour

Le projet de décret modifiant l’assurance chômage a été publié par le journal Le Monde.

Les partenaires sociaux doivent le discuter avec le gouvernement le 16 juillet 2019.

Ce décret prévoit notamment :

un durcissement des conditions d’accès au régime ; la mise en place de la dégressivité des allocations (à partir du septième mois) pour les salariés les mieux payés ; une nouvelle modalité de calcul des allocations.

Nous allons publier prochainement un commentaire exhaustif sur ce projet.

Il est consultable dans le pdf ci-dessous.

Bien à vous,

Frédéric CHHUM

Frédéric CHHUM Avocat et membre du conseil de l’ordre des avocats de Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 08/07/19
Dernier commentaire ajouté il y a 1 semaine 3 jours

France was hit by an unprecedented heat wave from June 24th to June 30th, 2019.

The working conditions in companies are impacted and employees do not always know how to react to the situation.

So what are the obligations of the employer and what conduct should the employees take in case of heat wave, especially regarding its dress.

1) The obligations of the companies in France

In the labor code, there is no direct obligation for the employer regarding hot weather.

However, the employer must create working conditions that allow employees to work effectively without endangering their health or safety (Article L. 4121-1 of the Labor Code).

Article R 4225-2 also provides that "the employer shall provide workers with drinking water and fresh water for drinking".

Nevertheless, when the working conditions are excessive, the employee can assert his rights and more particularly his right of withdrawal (art L 4131-1 of the Labor Code).

The Labor Code does not define what "excessive working conditions" might be, but the employer must take steps to take any useful measure that enables the employee to work properly.

2) Heatwave at work: How to conduct for employees? Is there a right to withdraw (droit de retrait) for the employee?

When, with the heat, the working conditions deteriorate until reaching an "excessive" point, the employee can then use his right of withdrawal (droit de retrait).

The right of withdrawal (droit de retrait) can be analyzed as a freedom for the employee to assess almost completely whether he is exposed to a danger and if necessary to be able to withdraw from his place of work.

Article L 4131-1 of the French Labor Code specifies the conditions under which this right of withdrawal must be exercised; in this respect, this right may be exercised if the employee "has a reasonable reason to believe that the situation presents a serious and imminent danger to his life or health" but he must not abuse it on pain of a penalty from the employer.

When exercising this right, the employee continues to be paid and "no salary deduction can be taken against a worker or a group of workers who have withdrawn from a job situation. work which they had a reasonable cause to believe was a serious and imminent danger to the life or health of each of them "(Article L 4131-3 of the French Labor Code).

Regarding the unique case of employees working outside, it is advisable to encourage dialogue with the employer to, for example, modulate work schedules to avoid being exposed to the hottest hours.

3) Question of dress

3.1) Can the employer impose an outfit?

The employer may regulate the wearing of an outfit in particular provided that it is justified by the nature of the task to be performed and proportionate to the purpose (Art L 1321-3 of the French Labor Code).

Moreover, when the employee is in contact with customers, the employer can also impose dress code.

3.2) Is the freedom of the employee absolute?

The principle is the freedom for the employee to be able to dress as he wishes (Cass., November 6, 2001, n° 99-43988) but, as previously seen, the employer's power of direction allows him to to limit this freedom since it is not considered by the texts as a fundamental freedom.

However, the tolerance of the employer is greater when the country goes through heat episodes, so the employer / employee dialogue must be favored to ensure compliance with the company rules.

Sources :

Article L.4131-1 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903155&cidTexte=LEGITEXT000006072050&dateTexte=20190708&oldAction=rechCodeArticle&fastReqId=438357419&nbResultRech=1

Article L.4121-1 of the Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000035640828&cidTexte=LEGITEXT000006072050&dateTexte=20190708&oldAction=rechCodeArticle&fastReqId=511737843&nbResultRech=1

Article L.4131-3 of the Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903157&cidTexte=LEGITEXT000006072050&dateTexte=20080501

Article R.4225-2 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000018532169&cidTexte=LEGITEXT000006072050&dateTexte=20080501

Article L. 1321-3 of the French Labor Code

https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000033975667&cidTexte=LEGITEXT000006072050&dateTexte=20170129

Cass. Soc., 6 novembre 2001, n°99-43988

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000007044936

Frédéric CHHUM Attorney Avocat and Member of the Bar Council of Paris

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 06/07/19
Dernier commentaire ajouté il y a 1 semaine 6 jours

In case of dismissal following an internal investigation (enquête interne) in a company, the judge, seized of a dispute of his dismissal by an employee, can not base his decision solely or in a decisive way on anonymous testimonies.

To our knowledge, the decision of 4 July 2018 is unpublished in this area.

This judgment must be approved because it strengthens the rights of defense of employees in case of dismissal following an internal investigation

Learn more at https://www.village-justice.com/articles/licenciement-suite-une-enquete-interne-juge-can-fund-decision-only-29031.html#DdxFSD4egcfPk5FV.99

1) The facts.

Mr. X  was hired on 1 March 2007 as an expert building buyer by SNCF mobilités.

On February 4 and 5, 2013, the employee and Mrs. Z ... approached SNCF's ethics department.

Following an internal investigation, the company notified the employee on 18 September 2013 of a suspension measure and summoned him to the Disciplinary Board.

He was fired on September 25, 2013 for fault.

The employee was reproached for making racist remarks about a colleague of Muslim religion and insulting remarks about his hierarchy.

2) In the case of an internal investigation, the judge cannot base his decision solely or decisively on anonymous testimony (temoignages anonymes)

On the approval of Article 6 §1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in its judgment of 4 July 2018, the Court of Cassation states that "the judge can not base his decision solely on or decisively on anonymous testimonies ".

Article 6 §1 of the ECHR states that:

"Everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall decide either disputes over his civil rights and obligations or the merits of any criminal charge against him. The judgment must be made publicly, but access to the courtroom may be prohibited to the press and the public during all or part of the trial in the interest of morality, public order or public order. national security in a democratic society, where the interests of the juveniles or the protection of the privacy of the parties to the trial so require, or to the extent that the court deems it strictly necessary, when in special circumstances advertising would be of such a nature as to undermining the interests of justice ".

Article 6 §3 of the ECHR provides that

"Everyone charged with a criminal offense has the following rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) have adequate time and facilities for the preparation of his defense;

(c) to defend himself or to have the assistance of a defense counsel of his choice and, if he can not afford to pay a defense counsel, be able to be assisted free of charge by an ex officio justice demands it;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he can not understand or speak the language used at the hearing ".

The Court of Cassation breaks the judgment of the Court of Appeal of Rennes which considered that the procedure of dismissal is regular and the dismissal justified and after having retained that "the infringement of the rights of the defense based on the anonymous character of the testimonials collected by the Ethics Directorate is not justified to the extent that the employee had the opportunity to read and comment on them, relied decisively on the report of the management of the ethics.

The Court of Cassation breaks and annuls the judgment of the Rennes Court of Appeal of 17 March 2017 in that it dismissed the employee's claim for damages for dismissal without cause real and serious.

She refers the case to the Angers Court of Appeal.

3) Provision of the judgment of 4 July 2018.

In the event of termination of employment, if a company conducts an internal investigation, employees who testify must be identifiable.

Otherwise, the dismissal may be invalidated because the evidence may be removed from the proceedings by the judge because of their anonymity.

In any case, the judge cannot base his decision solely or decisively on anonymous testimony

This decision, which strengthens employees' rights of defense in the event of dismissal following an internal investigation, is to be welcomed.

Source: Court of Cassation

    c. cass. 4 July 2018, No. 17-18.241 (Mr. X c / establishment SNCF mobilities).
    Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14.

Frederic CHHUM
Avocat au barreau de Paris et membre du conseil de l’ordre de avocats de Paris
Selarl Frédéric CHHUM LAWYERS (Paris, Nantes)
e-mail: chhum@chhum-avocats.com
Website: www.chhum-avocats.com
Blog: www.chhum-avocats.fr

Learn more at https://www.village-justice.com/articles/licenciement-suite-une-enquete-interne-juge-can-fund-decision-only-29031.html#xqsFX3hYDGxumSmp.99

Par frederic.chhum le 04/07/19
Dernier commentaire ajouté il y a 2 semaines 16 heures

The question is whether holding the press card is necessary to be a journalist?

I) Definition of the status of journalist.

Article L. 7111-3 of the Labor Code stipulates that a professional journalist "is one whose principal, regular and paid occupation is the exercise of his profession in one or more daily or periodical publications or press agencies and who draws the principal of its resources.

The quality of professional journalist implies the meeting of 4 conditions:

1. The exercise of a journalistic activity.

According to settled case law, a journalist is defined as one who exercises an intellectual and permanent collaboration with a periodical publication for the purpose of informing readers [1].

2. The principal exercise of the profession of journalist.

For example, it has been held that the status of professional journalist, who derives 60% of his annual resources through the practice of medicine in association, can not be granted, although "only the exercise journalism determines the application of the status of professional journalists it is not subordinated to the exclusive exercise of this activity "[2].

3. The exercise of the profession must provide the person concerned with most of his resources.

The journalist must draw the main of his resources, not important the low income [3].

Therefore, any agreement by which a press company makes sure, in return for remuneration, the assistance of a professional journalist is presumed to be a contract of employment. This presumption remains regardless of the world and the amount of the remuneration as well as the qualification given by the parties [4].

 

4. The practice of the profession must be carried out in one (or more) publication (s).

The recognition of the quality of professional journalist is not necessarily subordinated to the exercise of this activity in a press enterprise [5] but the journalist must work in a press publication with editorial independence [6].

Finally, "professional editorial staff, copywriters, stenographers-editors, copywriters, reporters / cartoonists, reporters-photographers, excluding advertising agents and those who are not" are considered professional journalists. provide, in any capacity whatsoever, occasional collaboration "(Article L. 7111-4 of the Labor Code).

The quality of journalist allows in particular to benefit from the collective agreement of the Journalists which is very favorable: payment of a premium of seniority as well as a premium of 13th month and right to a conventional indemnity of dismissal equivalent to 1 month of salary by year of seniority.

II) Detention of the press card: a simple presumption of the status of journalist but it is not a necessary condition to be a journalist.

Article R.7111-1 of the Labor Code states that "the professional identity card of journalists may be issued only to persons who, in accordance with the provisions of Articles L. 7111-3 to L. 7111-5, are professional journalists or are considered professional journalists. "

However, according to a decision of the Social Chamber of the Court of Cassation of 1 April 1992 "are journalists within the meaning of the latter text those who provide an intellectual and permanent collaboration to a periodical publication for the information of readers, it does not matter that a professional card has been handed to them. "[7]

The possession of the professional card in itself insufficient to establish that its holder does indeed have the status of professional journalist within the meaning of the legal text [8].

The press card is not "the" condition for qualifying as a professional journalist.

This is only a means of proving the quality of journalism.

The Court of Cassation has reaffirmed this recently, considering that the Court of Appeal had ruled on a groundless reason in holding that the possession of the journalist's card allowed to claim the status of professional journalist.

The Court of Cassation, however, recognized the status of professional journalist to the employee who worked for an audiovisual press company, which regularly provided him with work and that he drew most of his resources from this activity [9]

The request for a press card must be sent to the Commission of the professional journalists' identity card accompanied by the justifications provided for in Article R. 7111-2 of the Labor Code.

The annual renewal is done on justification of the activity of journalist during the calendar year (R.7111-7 and R.7111-8).

Contacts

Maître Frédéric CHHUM

CHHUM AVOCATS (Paris, Nantes, Lille)

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris : 4 rue Bayard 75008 Paris tel : 0142560300
.Nantes : 41, Quai de la Fosse 44000 Nantes tel : 0228442644

.Lille : 25, rue Gounod 59000 Lille tel : 0320135083

Par frederic.chhum le 04/07/19
Dernier commentaire ajouté il y a 2 semaines 16 heures

CHHUM Avocats (Paris, Nantes, Lille) has 5 lawyers working in labor law (3 lawyers at the Paris Bar, 1 lawyer at the Nantes Bar and now 1 lawyer at the Lille Bar).

CHHUM AVOCATS defends employees (dismissal protests, overtime, moral or sexual harassment, discrimination, etc.)

It is also classified as "excellent" in the ranking "Décideurs 2019" in the "Defense of employees" category.

CHHUM Avocats intervenes in French and international labor law and assists in particular employees, intermittent entertainers, artists, journalists (requalification of CDD in CDI) as well as executives, executives, expatriates and impatriates.

The firm CHHUM Avocats has developed expertise in the defense of Anglo-Saxon employees working in France and in the departure negotiations of these employees.

The Cabinet also defends staff representatives, shop stewards, unions, works councils and CHSCT.

CHHUM AVOCATS pleads before all courts (Labor Court, Court of Appeal, High Court, Criminal Court, TASS).

***

Maître Frédéric Chhum, founder and partner of CHHUM Avocats, was elected member of the Council of the Bar Association of the Paris Bar (term 2019-2021).

For the year 2019, the assignments of Maître FRÉDÉRIC CHHUM to the Council of the Paris Bar Association are as follows:

. Delegate to links with social courts

. Member of the Conflict of Interest and Incompatibilities Committee

. Member of the Ducroire commission, succession and fees

. Member of the Committee on Relations with litigants

. Member of the Committee on Relations with the Social Courts

. Member of the Committee of Relations with Zen prud'hommes

. Member of the Plenary Committee of Ethics

. Member of Judging Panel No. 3

. Member of the Communication Commission

. Member of the Equality Commission

. Member of the Harassment and Anti-Discrimination Commission

. Member of the Collaboration Committee.

. Member of the committee Difficulties of exercise in collaboration (DEC) - Commission for the settlement of difficulties of exercise in salaried collaboration and request for requalification (SDR)

. Member of the Reform and Modernization Commission

. Member of the Perquisitions Commission

Source: Organization chart 2019 Paris Bar

http://www.avocatparis.org/system/files/publications/organigramme_conseil_2019_2.pdf

Contacts

Maître Frédéric CHHUM

CHHUM AVOCATS (Paris, Nantes, Lille)

4 rue Bayard 75008 Paris

Tel: 01 42 56 03 00

www.chhum-avocats.fr

https://twitter.com/fchhum