27 rue du Pont Neuf 75001 Paris
+33(0)1 40 20 91 26

“Forfait jours”: case from the French Social Chamber of the Court of cassation from April 24, 2013: the provisions contained in the collective agreement SYNTEC are insufficient

In this case from April 24, 2013, the French Court of cassation reinforced its case law concerning the requirements for a “convention de forfait en jours” (a convention employing someone on a number-of-days-per-year basis), which it has developed since 2011.
In the case, a managerial employee who benefited from a convention de forfait en jours, handed in her resignation.
The employer brought an action against the former employee in order to enforce the application of the restrictive trade agreement contained in the employee’s labor contract.
The Court of appeal in Paris (Pôle 6, Chamber 8, October 20, 2011, n°10/00606) held the restrictive trade agreement void, and following an appeal, the case was subject to a control by the Court of cassation.
The Social Chamber of the Court of cassation subsequently enlarged the debate by raising an issue sua sponte (article 1015 of the French Civil Procedure Code), and ruled on the validity of the convention de forfait.
The Court, on the grounds of article 151 of the Treaty on the Functioning of the European Union, the former article L.212-15-3 of the French Labor Code and the Charter of fundamental rights of the European Union, clearly held that the collective agreement SYNTEC (“bureaux d’études techniques, cabinets d’ingénieurs conseils, sociétés de conseils”) is insufficient in the protection it gives to employees, and therefore declared the convention de forfait void.
The Court of cassation’s decision is not surprising as (I) the Court reiterates its already firm but clear position on the matter, however, (II) it entails important consequences for both employees and employers.

  1. The reiteration of a clear and firm position

The Court of cassation lays out the requirements that must be respected regarding an employee who is subject to a forfait en jours scheme.
Reading the convention de forfait, which referred to the company agreement, which itself included provisions from the collective agreement SYNTEC, the judges held that all of these provisions “did not guaranty the reasonableness of the magnitude of work and the workload and did not ensure a correct distribution, in time, of the concerned party’s work, and, thus, did not ensure the protection of the employee’s safety and health”.
It must be possible to control the period for which an employee subject to a convention de forfait works, and the court held that a simple “specific follow-up at least two times a year” is insufficient to ensure that the magnitude of work and workload be maintained at a reasonable level.
Even though the decision is quite harsh, it does not come as a surprise, and in 2012 the Court sanctioned a number of individual conventions de forfait which had been adopted pursuant to four different collective agreements:
·         January 31, 2012 (n°10-19.807) Agreement from the chemical industry sector;
·         June 13, 2012 (n°11-10.854) Agreement from the domestic help in rural areas sector;
·         September 19, 2012 (n°11-19.016) Agreement from the clothing industry sector;
·         September 26, 2012 (n°11-14.540) Agreement from the wholesale sector.
The case from April 24, 2013, falls perfectly in line with this case law, and using very symbolic grounds for the decision, the Court reaffirms its position and requires that a convention de forfait en jours guaranties the protection of the employee’s health and security.
The Social Chamber’s firm position affects a large number of conventions de forfait en jours and thus a wide number of employees and employers.

  1. From the requirements to the important consequences

The Court offers a high level of protection for the employees subject to a forfait en jours regime, but this control carried out by the Court presents a risk for the employers of a significant penalty.
Firstly, it should be recalled that it was the law n°2000-37 from January 19, 2000 (also known as the Aubry II law), which set up this legal regime for organizing an employee’s work time. The law specifies that an employee can only be subject to this scheme if two conditions are fulfilled, on one hand, an extended collective agreement or a company or establishment agreement must specifically allow the use of a convention de forfait en jours, and on the other hand, the employee concerned by the regime must expressly accept to be subject to it in an individual convention.
Therefore, the Court highlights that an individual convention de forfait en jours is valid only on the condition that the collective agreement contains provisions which set up a supervision of the employee’s work time ensuring a guaranty of the employee’s health and safety. The individual convention de forfait which merely copies the insufficient provisions of the collective agreement is thus likely to be systematically held void.
However, this case and the ones preceding it do not allow one to answer with certitude a yet essential question. Can an individual convention de forfait en jours containing provisions that sufficiently guaranty the protection of the employee’s health and safety avoid being held void, even if it is adopted pursuant to the flawed collective agreement?
The Court has not yet settled the question and uncertainty prevails. To be sure to escape a waterfall of nullities of the conventions de forfaits, the only solution is to renegotiate the collective agreements and subsequently modify the individual conventions de forfait en jours, adopted pursuant to the new provisions of the collective agreements.