Tightening of labour penal law
Newsletter - May 2016
Following on from the French Macron law, the order of 7 April 2016 completed by the decree of 25 April 2016 reinforces the powers of Labour Inspectorates and Regional Directorates for Companies, Competition, Consumption, Labour and Employment (DIRECCTE) as regards penal sanctions applicable in labour law.
Until now, the penal order (ordonnance pénale) introduced by the law of 3 January 1972 could be used to swiftly deal with the least serious violations (minor offences) except for breaches of labour law. The new order reforms this specific feature with view to dealing with company breaches of labour law more rapidly.
The public prosecutor may opt for a simplified procedure and directly forward the prosecution brief and his requisitions to the police court. If the accused fails to raise an objection within 30 days, the penal order will be effective as a court decision handed down with authority of res judicata.
Article L.8114-4 of the French Labour Code now provides that “the competent administrative authority [the labour inspectorate] may, while the public action has not been set in motion, settle with natural persons and legal entities on the prosecution of a violation constituting a minor offence.”
The settlement may particularly relate to employment contract provisions, personnel policies, the application of collective labour agreements, working hours, salary, workplace health and safety or apprenticeship contracts.
Instead of sending the prosecutor a report of the breach, the DIRECCTE may opt for a settlement which, if accepted by the employer, will be approved by the prosecutor. The approval suspends the time limit for court action which is extinguished when the offender fulfils all its obligations within the time allowed. The settlement avoids the employer having to appear in court and allows him to opt for a penalty which could be higher in the event of an action in court.
Settlements are not possible in respect of offences punished by a prison sentence in excess of a year, due to the seriousness of the breach.
In the event of a breach giving rise to criminal sanctions and an administrative fine, the labour inspector makes an irrevocable choice: he may either draft a report as mentioned above and send it to the Prosecutor though the DIRECCTE, or draft a report which is sent to the DIRECCTE. The latter will then decide on the fine, having regard for the circumstances and the seriousness of the offences, the offenders’ behaviour, and their income and expenses.
The order considerably broadens the scope of application of administrative fines. Article 5 provides that a €2,000 fine is incurred for each employee affected by a breach concerning working hours, minimum daily and weekly rest, employer preparation of documents required to count working hours, acquired compensatory rest and its effective application where there are no collective fixed working hours, setting of the minimum salary increase and application of the minimum salary defined by the company’s collective labour agreement, employer obligations relative to sanitary facilities, meals and accommodation, and obligations relating to required technical health protection and accommodation measures during performance of certain construction works.
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