Executives employed on a number of working days/year basis in France

Careful with the applicable law

Many companies employ their executive personnel on a number-of-days-per-year basis.

This contractual possibility was created by the Aubry law reducing the legal working time to 35 hours.

This employment modality is designed for the “cadres” employees whose working time cannot be assessed beforehand.

These dispositions were amended for simplification by the august 20th 2008 law.

These clauses make it possible to calculate the working time of an executive employee, not on the basis of daily or weekly hours, but on the basis of number of days over the year.

The number thus agreed, allows for the globalisation of the employee’s working time and his remuneration. He manages it in an autonomous way.

But freedom of organization does not mean work without limits.

Because it sometimes results in imposing a daily work exceeding the legally authorized limits on the executives concerned, the Cour de cassation pointed out the necessary conditions of those conventions.

It is a big issue.

Indeed, if the concerned clause is cancelled, the company will be confronted with a very expensive request for payment of the worked overtime.

How can one avoid such a situation?

It first needs to be reminded that the compatibility of this employment modality with the European texts is in debate. Conformity with article 2 §1 of the European social charter is questionable, for the reason that the maximum working time for employees subjected to this employment modality could be excessive.

The Cour de cassation added various conditions that have to be kept in mind:

Cour de cassation – Chambre sociale – 09-71.107 – June 29 2011 :

The Cour de cassation judged that “Given that, according to article 14 of the agreement of July 28th, 1998 on the work organization for metallurgy, the employment modality of a given number of working days per year is accompanied by a control and count of worked days and days of rest taken; that the employer is held to draw up a control document revealing the number and the date of the days worked, as well as the positioning and the qualification of the days of rest, conventional paid vacations, vacation or days of rest corresponding to the reduction of working time; that this document can be held by the employee under the responsibility of the employer; that the employee’s superior ensures the regular follow-up of the organisation of the interested party’s work and workload; that moreover, such an employee profits, each year, of an interview with his hierarchical superior during which will be evoked the organization and the workload of the interested party and the amplitude of his days of activity; that this amplitude and this workload will have to remain reasonable and ensure a good distribution, in time, of the work of the interested party”

The Cour de cassation thus conditions the recourse to this employment method to a certain number of criteria intended to preserve the right of the employees to health and rest.

Need for a collective agreement:

• the collective agreement which fixes the framework of such conventions in days must set forth concrete measures likely to ensure the respect of the effective calculation of the days and half-days worked as well as the respect of the legal daily and weekly rest periods;

• the employer must make sure that the legal dispositions and the stipulations of the collective agreement are respected. The daily and weekly rest periods must be effective; the employer must hold an individual annual interview concerning the workload, the organisation of work in the company, the articulation between occupation and personal life and family, and the remuneration.

 It is thus necessary to check the dispositions of the applicable collective agreement, and where required to set up a device of calculation of the worked days and half-days, e.g. a badge reader or a signature system.

But it sometimes happens that the collective agreements do not lay down a sufficient device:

Cour de cassation – Chambre sociale – 11-14.540 – September 26 2012 :

The Cour de cassation judged “That while thus ruling, whereas neither provisions of article 2. 3 of agreement ARTT of December 14th, 2001 taken pursuant to the national collective agreement of wholesale trades of June 23rd, 1970, which, in the case of an annual number of working days convention in days, are limited to envisage, as regards the load and the amplitude of work of the employee concerned, an annual discussion with its hierarchically superior, nor the stipulations of the endorsement of January 26th, 2000 to the company agreement of February 17th, 1999, which, as regards the amplitude of the work days and the workload which results from it, set forth a quarterly examination by the direction of the information communicated on these points by the hierarchy, are likely to guarantee that the amplitude and the workload remain reasonable and to ensure a good distribution, in time, of the work of the interested party, and, therefore, to ensure the protection of the security and the health of the employee, the Court of Appeal should have stated that the convention in days was void, and thus violated the texts referred to above”.

Indeed, pursuant to the article L. 3121-45 of the French Labor Code and according to the European Community Directives of 1993 and 2003, any convention of employment in days per year must be provided by a collective agreement whose stipulations ensure the respect of the maximum durations of work as well as daily and weekly rest periods, in the respect of the general principles of the protection of the security and the health of the workers.

Stipulations which only provide, as regards the load and the amplitude of work of the employee, an annual discussion with his hierarchical superior and a quarterly examination by the direction of the information communicated on these points by the hierarchy, since they are not likely to guarantee that the amplitude and the workload remain reasonable and to ensure a good repartition in time of the work of the interested party, do not respect these principles.

The convention in days is thus deprived of effect, resulting in payment of the overtime work carried out over the 5 last years, as well as payment of the indemnity for dissimulated work.

In all circumstances, it is imperative to include in the work contract a clause expressly setting forth the choice for employment on a number of days/year basis. This clause must precisely indicate the number of worked days, the remuneration agreed upon, and the methods of calculation of worked days and half-days, as well as the days of rest.

Cour de cassation – Chambre sociale – 10-17.593 – January 11 2012 :

The Cour de cassation judged “That in ruling as it did, whereas no individual convention of employment in days had been passed in writing between the company and the employee, and the general reference in the work contract to the company agreement which cannot constitute the required writing, the Court of Appeal violated the text referred to above”.

The introduction of the annual fixed price in days thus supposes, besides a collective agreement authorizing the use of this modality, an individual convention in writing with the employee’s agreement.

 It is thus advisable to check that an individual convention in days has been concluded w
ith each employee. This convention must set forth the details of the calculation of the worked days and of the quarterly interviews, and mention the legal obligatory times of rest and maximum work.