Employing staff requires the employer to consider the question of working time within the company.
Should you allow employees to work 35 hours per week or organise working time in a more suitable and flexible way for your organisation? Should you ask employees to work overtime or provide for a fixed number of hours?
These are the questions that the employer must ask itself.
However, the question of working time is one of the most contentious in French law. In the industrial tribunals, applications for the payment of overtime or challenges to fixed number of days agreements are almost systematic.
This is why it is imperative to be well informed and to choose an organisation of working time that is suited to and consistent with your activity, your organisation, but also the legal and collective agreement provisions and, finally, the status of the employee concerned.
In this context, the annual fixed number of days agreement may have a certain allure since it seems more flexible than other types of working time organisation, particularly organisation by number of hours. However, this is not really the case and this is what we explain here!
In French law, there are two categories of fixed number of days agreements:
The fixed number of days without hourly reference corresponds:
Fixed number of days agreements are tools for both simplifying pay and for organising working time.
In this article, we focus exclusively on the so-called "annual fixed number of days" contract.
Companies wishing to put in place annual fixed number of days agreements must be subject to the combined provisions of two different agreements concluded at two different levels:
We will come back to each of these obligations.
Putting in place individual annual fixed number of days agreements is subject to the conclusion of a collective company, site or, failing that, industry agreement (Art. L.3121-63 French Labour Code).
The law of 20 August 2008 gave priority to the company or site agreement over the industry agreement for setting up annual fixed rate contracts. Thus, the provisions of the company or site agreement may apply within the company or site, regardless of the provisions of the industry agreement and regardless of the date of conclusion of the latter.
According to the legislation, several provisions are mandatory (Art. L. 3121-64 French Labour Code)
If these mandatory provisions are not complied with, the collective agreement is not sufficient and the individual agreements for an annual fixed number of days concluded on its basis are not binding on the employee.
To use the annual fixed number of days agreement, the employer must obtain the express agreement of each employee concerned.
The application of the fixed number of days agreement must therefore be included in the employment contract or in an amendment to the contract (Art. L. 3121-55 French Labour Code; Court of Cassation, Employment Division, 28 Sept. 2010, no. 09-41.624; Court of Cassation, Employment Division, 8 March 2012, no. 10-24.305 ; Court of Cassation, Employment Division, 19 Feb. 2014, no. 12-26.479).
The content of the amendment or contract cannot be limited to a sentence referring to the collective agreement authorising the implementation of such agreements (Court of Cassation, Employment Division, 31 Jan. 2012, no.10-17.593).
The conclusion of a fixed number of days agreement constitutes a modification of the contract. Consequently, the employee’s refusal to have an annual fixed number of days agreement applied to him/her is not in itself a legitimate reason for dismissal.
The provisions to be included in your working time agreements or your annual fixed number of days agreements must meet the requirements of law and case law.
There are two categories of employees able to conclude an individual fixed number of days agreement:
The agreed provisions are strict. If the collective agreement specifies that employees able to conclude a fixed number of days agreement must benefit from a minimum classification, the employee who does not meet this condition cannot come under the regime of the fixed number of days agreement (Court of Cassation, Employment Division, 3 Nov. 2011, no. 10-14.638; Court of Cassation, Employment Division, 3 Nov. 2011, no. 10-20.191).
In practice, moreover, there are several obligations incumbent on the employer with regard to monitoring the workload of employees.
For executives subject to the annual fixed number of days agreement, working time must be counted each year based on the number of days or half-days worked by each employee concerned (Art. D. 3171-10 French Labour Code). It is the employer's responsibility to carry out this monitoring.
The collective agreement must also lay down the terms and conditions under which the employer shall carry out this assessment and monitoring, as well as the conditions for organising the interview, enabling both parties to communicate periodically on the employee’s workload and work-life balance.
In the absence of provisions of the collective agreement on monitoring of the workload, an individual annual interview must be organised by the employer with each employee who has entered into an annual fixed number of days agreement.
This interview concerns the workload, the organisation of work in the company, work-life balance and the employee’s remuneration (Art. L. 3121-65 French Labour Code).
In general, the employer is increasingly confronted with demands related to the respect of its health and safety obligation and must increasingly, in litigation, be able to demonstrate that it has done everything possible to take measures to prevent an excessive workload, and the corrective measures that were necessary in the event of an employee alert.
Do not take the risks associated with the annual fixed number of days agreement lightly
The annual fixed number of days agreement is almost systematically called into question in the event of litigation and it is not uncommon for employees to be successful (sometimes on appeal), when the employer's files are not complete.
As employers, you are primarily responsible for monitoring the workload of your employees and carrying out all the formalities provided for as part of setting up and practical implementation of the annual fixed number of days agreement. The burden of proof on the employee to show evidence of working hours is relatively small, making the task even more complex for the employer.
It is imperative to ensure that your basic documentation and your practices regarding working hours comply with the requirements of the Court of Cassation in order to limit the risks of conviction in the event of litigation.
In the event of non-compliance by the employer with these obligations, the employee will be considered as returning to the legal working time (35 hours per week) and will be able to request that the hours worked beyond this time be considered as overtime and be paid as such (i.e. at the rate increased by 25% or 50% depending on the case, unless a collective agreement provides for another rate).
There is no exception to this rule, and the Court of Cassation considers that the payment of a salary greater than the minimum set by the collective agreement may not be used as a substitute for payment of overtime (Court of Cassation, Employment Division, 4 Feb. 2015, no. 13-20.891).
Moreover, applying the fixed number of days agreement without the employee’s written consent may constitute the offence of undeclared labour insofar as the intentional nature of failing to state overtime on the pay slip results from the absence of this written agreement and the fact that the employee regularly works a number of hours greater than the legal duration (Court of Cassation, Employment Division, 27 June 2012, no. 11-10.491; Court of Cassation, Employment Division, 27 Nov. 2013, No. 12-20.909; Court of Cassation, Employment Division, 28 Feb. 2012, no. 10-27.839). The same applies when the agreement on a fixed number of days is not sufficiently precise (Court of Cassation, Employment Division, 12 March 2014, no. 12-29.141).
Finally, the employee may also request the payment of damages for the breach of the employer’s obligations, for example the safety obligation in the event of a significant impact of this situation on the employee's state of health (Court of Cassation, Employment Division, 2 March 2022, no. 20-16.683).
The employer, for its part, may request the reimbursement of additional days of rest granted in execution of an agreement that is null and void (Court of Cassation, Employment Division, 4 December 2019, no. 18-16.937) or ineffective (Court of Cassation, Employment Division, 6 January 2021, no.17-28.234).
The Social and Economic Committee is also involved in the annual fixed number of days agreement.
It is consulted every year on the use of fixed number of days agreements and on the procedures for monitoring employee workload in the context of the mandatory annual consultation on the company's labour policy, working conditions and employment.
Failure by the employer to comply with the obligation to consult the Social and Economic Committee on the use of fixed number of days agreements shall not result in the nullity of the fixed number of days agreement.
Failure to consult constitutes the offence of obstructing the operation of the Social and Economic Committee.
A trade union can also take legal action to compel an employer to terminate an unlawful scheme of using fixed number of days agreements. On the other hand, it may not request the nullity or unenforceability of individual fixed number of days agreements concluded by the employees on the basis of the disputed collective agreement or the counting of working time according to the rules of ordinary law (Court of Cassation, Employment Division, 15 Dec. 2021, no.19-18.226).
Fixed number of days agreement and hours of delegation
Since the French Labour Act of 8 August 2016, a mechanism for counting delegation hours specific to employee representatives subject to a fixed number of days agreement applies. Unless a collective agreement states otherwise, the credit for hours of an elected representative of the CSE on an annual fixed number of days contract is grouped into half-days which will be deducted from the annual number of days worked set out in the individual fixed number of days agreement (Art. R. 2315-3 French Labour Code).