The precedence of the company-level agreement and working hours
Newsletter - October 2016
The Labour Law was published in the Government Gazette (“JO”) on 9 August 2016 and has been in force since 10 August 2016. The law affects many fields pertaining to labour law and includes many new provisions, particularly as concerns the precedence of the company-level agreement and of working hours.
Priority of the company-level agreement
Whereas at present the labour law is the major rule from which the company-level agreement may provide variance, the Labour Law specifies at Article 8 that the company-level agreement is henceforth the accepted legal standard as concerns working hours. Naturally, company-level agreements continue to be subject to compliance with public policy requirements. They also take precedence over the industry-level agreement.
The company-level agreement henceforth takes precedence in the setting of the supplement rates of overtime hours. The industry-level agreement now only applies if there is no company-level agreement. In all circumstances, the supplement may not be less than ten per cent (10%) (some collective bargaining agreements already set this rate at 10% prior to the entry into force of this law).
Daily rest time
The company-level agreement may henceforth differ from the rules pertaining to daily rest time for activities that require that employees provide permanent service or that have split performance periods. In this connection, Article L.3131-1 of the Labour Code, with mandatory force, specifies that such a waiver is possible only in an emergency. As in the past, the daily working time may not be greater than twelve hours.
Making the day-based or hour-based pay secure
Annual quantities of hours or days must always be set up via a company-level agreement, or if there is not one, via an industry-level agreement (Article L.3121-63 of the Labour Code).
There must now be two new clauses in the agreement, ones that:
– define the 12-month reference period of the annual quantity (whether calendar year or not),
– determine the procedures for accounting for periods of absence, work starts and work departures during the period for compensation of the employees.
Giving up the one-day break
Employees under the day-quantity system retain the option of giving up a portion of their rest days in consideration of an increase in their pay, via a rider to the fixed-time agreement. Article L.3121-59 of the Labour Code specifies that the rider to the fixed-time agreement entered into between the employee and the employer determines the rate of the increase that applies to the compensation for this overtime, and it may not be less than 10%. This rider is valid for the current year. It may not be renewed by tacit agreement.
A reasonable workload
The Labour law, strongly influenced by prior case law, specifies that the employer must ensure that the employee’s workload that is encoded in a day-based fixed-time agreement is reasonable and allows a good distribution of his/her working time.
The company-level or industry-level agreement must specify the way in which the following items are to be performed:
– the right to disconnect (a new subject to be discussed in the annual negotiation on workplace quality of life);
– regular assessment and monitoring of the employee’s workload;
– implementation of periodical discussions between the employer and the employee concerning the employee’s workload.
If the employer chooses not to include stipulations in the employment agreement pertaining to such monitoring, it may enter into a day-based fixed-time agreement as long as it complies with all of the following three conditions:
– It produces a monitoring document that states the date and number of days or half-days worked;
– It ensures that the employee’s workload is compatible with compliance with daily and weekly rest times;
– It organises a special annual interview (separate from the annual assessment interview) in which the topic of discussion will be workload, organisation of workload and integration with the employee’s work life and private life, as well as compensation.
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