The collective performance agreements (accords de performance collective) were set up by Article 3 of Macron Ordinance n° 2017-1385 of September 22nd 2017.
They have the specificity to prevail over the provisions of an individual employment contract (contrat de travail) including in a direction unfavourable to the employee.
However, on the occasion of law n° 2018-217 of March 29th, 2018 to ratify the Macron ordinances, the parliamentarians added a provision that provoked lively debate since it allows these agreements to modify or put in place annual flat rate agreements (forfait jours) (article L. 2254-2 of French labour Code).
1) What is a collective performance agreement (accord de performance collective)?
1.1. Purpose: to meet the needs related to the operation of the company or to preserve or develop employment.
The collective performance agreement is a collective agreement concluded "in order to meet the needs related to the operation of the company or to preserve or develop employment" and whose provisions replace the contrary or incompatible provisions of the employment contract. (Article L. 2254-2, I of French Labour Code)
1.2. A majority agreement
It brings together and replaces existing old arrangements: job retention agreements, preservation or employment development agreements, working time reduction agreements and internal mobility agreements.
To be valid, the collective performance agreement must have the signature of one or more trade union organizations that obtained more than 50% of the votes cast in the first round of the last professional elections.
1.3. Collective Performance Agreement: exception to the principle of favour (principe de faveur)!
The provisions of the agreement thus concluded are automatically substituted to the contrary or incompatible provisions of the employment contract. (Article L. 2254-2, III of French Labour Code)
This is therefore an exception to the principle of favour since the provisions of the collective agreement will prevail over the provisions of the employment contract (contrat de travail), no matter whether they are more or less favourable to the employee.
1.4. In case of refusal by an employee: sui generis dismissal
The employee may always refuse the application of the provisions of the agreement and the modification of his employment contract which follows within a month from the date on which the employer informed him/her of the agreement and of its contents. (Article L. 2254-2, IV of French Labour Code)
If necessary, the employer has a period of two months to implement the dismissal, the refusal of the employee constitutes a sui generis dismissal which carries the same consequences as a dismissal for personal reasons besides the contribution of the personal account at least 100 hours. (Article L. 2254-2, V of French Labour Code)
2) The insertion of a flat rate agreements (forfait jours) by a collective performance agreement
A collective agreement can set up a flat rate agreements (forfait jours) since the article L. 2254-2 of French Labour Code aims precisely the organization of "the duration of the work, its modalities of organization and of division ". (Article L. 2254-2, I of French Labour Code)
However, the introduction of a flat rate agreements (forfait jours) remains subject to the conditions pertaining to this type of organization of work provided for in Articles L. 3121-53 to L.3121-66 of French Labour Code: "Articles L. 3121- 53 to L. 3121-66 apply if the agreement implements or modifies an annual flat-rate scheme, with the exception of Article L. 3121-55 and 5 ° of I of Article L. 3121-64 in case of simple modification”. (Article L. 2254-2, II, 4 ° of French Labour Code)
2.1. A written flat rate agreement (forfait jours)
The collective performance agreement therefore in no way allows an employer to require the employee to go under a flat rate agreement (forfait jours).
The employer is still required to conclude an individual flat-rate agreement in writing with the employee whose consent must be obtained.
On this point, the General Director of Labour (Directeur général du travail) considers that the employee's refusal to sign a flat-rate agreement (forfait jours), even on the basis of a collective performance agreement (accord de performance collective), cannot constitute a ground for dismissal. (See Liaisons Sociales June 4th, 2018: l’accord de performance collective peut il imposer un forfait jours à un salarié?)
2.2. Follow-up of the workload (charge de travail) of an employee under a flat-rate agreement (forfait jours)
Similarly, the implementation of a flat-rate agreement does not exempt the employer to carry out an annual evaluation monitoring a flat-rate agreement.
2.3. Warning: still no flat rate agreement for employees in shift work (travail posté).
Above all, the employer still cannot subject any employee to a flat-rate agreement.
Only executives whose nature of work does not lead them to follow the collective schedule applicable within the workshop, department or team to which they are integrated are eligible; employees who have real autonomy in organizing their schedule. (Article L. 3121-56 of French Labour Code)
Such a device is therefore excluded for all shift work (assistant, accountant, etc.).
3) The modification of a flat-rate agreement by a collective performance agreement (accord de performance collective)
The situation is however very different when it comes, through the collective agreement, not to insert a flat rate agreement but to change an already existing flat rate agreements.
In fact, Article L. 2254-1 of French Labour Code excludes, in case of a simple modification of the a flat rate agreement (forfait jours), the application of Articles L. 3121-55 (need to obtain the agreement of the employee and conclude a written agreement) and 5 ° I of Article L. 3121-64 of French Labour Code (need for the individual agreement to fix the number of days included in the package). (Article L. 2254-2, II, 4 ° of French Labour Code)
Therefore, the collective performance agreement can validly modify of the number of days provided by the flat rate agreement (forfait jours) and the employee who is affected by such change has one month to refuse.
If necessary, he/she may be dismissed under the conditions previously set out (see § 1.4 above).
However, the employee may still challenge the validity of his/her initial flat rate agreement (forfait jours) with the standard conditions of resort to fixed days before French Labour Tribunal (Conseil de prud’hommes).
Moreover, if he succeeds on this point, it will then be possible to plead that the dismissal based on the refusal of the modification of an unvalid flat rate agreement is unfair.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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