Annual number of working days
Newsletter - April 2017
The legal working time is set at 35 hours per week. As an exception, it is possible to introduce covenants on an annual number of working days for certain categories of staff. The Labour Law of 8 August 2016 specified the content of collective labour agreements authorising use of such covenants.
Need for a collective agreement
To introduce an annual number of working days, a collective labour agreement must be signed, i.e. either a company or site agreement, or otherwise an industry-wide agreement. The collective agreement must determine the categories of staff covered, the annual number of days of work, the characteristics of the individual covenants, the reference period for the number of days and the rules applied to account for absences and arrivals and departures during the period.
All agreements signed since 10 August 2016 must now specify the manner in which the employer monitors the employee’s workload and how employer and employee regularly communicate on this topic (work/life balance, pay, organisation of work).
If this information is not included, the employer may nonetheless enter into individual agreements provided that it:
– drafts a control document detailing the number and date of days worked,
– makes sure daily rest time (11 consecutive hours) and weekly rest time (35 consecutive hours) is respected,
– organises a yearly meeting with the employee to discuss his/her workload, organisation, pay and work/life balance.
Finally, the collective agreement must also contain provisions on the right to disconnect. Agreements prior to 10 August 2016 remain in force, subject to the employer respecting workload monitoring and the right to disconnect and defining the conditions thereof by any means.
Need for an individual agreement
Employer and employee must sign an individual agreement on the annual number of working days. This agreement determines the number of days worked within the limit defined by the collective agreement and within the legal limit of 218 days per year.
The annual number of working days only applies to executives who are free to organise their work schedule and whose duties do not require them to apply the collective timetable, or to employees (whether managerial or otherwise) whose working time cannot be determined in advance and who are also genuinely free to organise their schedule. On this point, the Court of Cassation has recently held (Cass. Social Division, 15 December 2016) that an employee with an inflexible timetable who is in fact required to respect a schedule requiring his/her presence in the company at predetermined times cannot have an annual number of working days agreement.
Employee’s working time and pay
An employer must monitor its employees’ working hours. It must be able to prove that it fulfils the obligations to monitor working time and days worked, for each employee. It must particularly keep records of days worked available to the labour inspector for three years.
When an employee is absent, the absence can only be deducted in full or half days, depending on the terms of the agreements. Any deduction in hours or quarter days is inappropriate.
The employee’s salary is fixed and must be commensurate to the obligations imposed. Therefore, an increasing number of collective agreements now provide for minimum salaries for these employees.
Application of an annual number of working days implies granting a certain number of days off that will vary each year. The calculation for 2017 is for example as follows, for a 218-day agreement:
Days in the year: 365 – Weekend days: 105 – Days of paid holiday: 25 – Bank holidays: 9
The number of days off is therefore: 365 – 105 – 25 – 9 – 218 = 8 days.
If the employee is absent, the counter for the award of days off may be suspended if the collective agreement so provides. Therefore, the number of days earned may be reduced following medical leave of absence (Cass. Social Division, 16 December 2015).
Note that the employee may ask for these days off to be paid, but the employer is not required to accede to the request. This payment is formalised in a written addendum to the employment contract defining the overtime rate applied (10% minimum).
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