Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
When an employee's duties make it impossible to follow a predefined timetable, it may be possible to provide for other working time arrangements and, in particular, to subject the employee to a fixed annual number of days if he or she meets the autonomy requirements set out in the Labour Code, or failing that, to a fixed number of hours.
In particular, the national collective agreement for technical consultancies, engineering consultancies and consultancy firms, commonly known as ‘Syntec’, sets out specific terms and conditions for these different working time arrangements.
What are the conditions of eligibility, how does the fixed rate apply and what are the penalties for non-compliance with the conditions laid down by law and the collective agreement?
These are the questions addressed in this article.
First of all, what does the term ‘forfait’ mean in employment law?
Lump-sum agreements are primarily tools for simplifying remuneration and organising working time.
Under French law, there are two categories of flat-rate agreement:
Fixed rate with hourly reference
The employer and employee agree on a schedule involving a constant number of overtime hours, in return for a fixed salary.
The salary is calculated on the basis of the number of hours of overtime worked per week, month or year.
There are two types of fixed hourly rates: (article L.3121-56 of the French Labour Code)
• Fixed rate without reference to working hours
This type of package may be used when it is impossible to determine with certainty the number of hours worked because of the duties performed by the employee.
There are two types of non-hourly packages:
We will focus here on the fixed annual number of days provided for in the Syntec collective agreement.
The fixed annual number of days means that there is no longer any notion of working ‘in hours’, as working time is no longer counted in hours but in days. In return for the number of days worked over the year, the employee is granted a number of additional rest days.
Two types of employees are eligible for the annual fixed number of days (article L.3121-58 of the French Labour Code):
Apart from these legal rules, nothing is imposed by the Labour Code, so employers may, subject to compliance with these provisions, themselves define the contractual levels that will make them eligible for the annual fixed number of days.
However, the provisions of the collective bargaining agreement must always be respected.
Thus, when the collective agreement establishing the annual fixed number of days specifies a minimum classification for entry into the scheme, these provisions must be complied with (subject to the rules relating to the branch/company relationship). (Cass. Soc., 3 Nov. 2011, no. 10-14.638)
How is employee autonomy assessed?
An employee who, while being subject to the instructions of his employer or line manager in the performance of his duties, remains in control of the organisation of his schedule is considered to be ‘autonomous’.
To determine whether an employee complies with this definition, it is necessary to check whether, in practice, he or she has sufficient freedom to organise his or her working hours and carry out his or her duties.
No precise criteria have been defined by the case law, but it is possible to consider that an employee is sufficiently autonomous if he freely determines his appointments, his arrival and departure times, taking into account the workload associated with his duties, or the distribution of his tasks within a day or a week, the organisation of his holidays, taking into account the imperatives linked to the smooth running of the company and in compliance with the holiday arrangements set by the employer.
Generally speaking, this is incompatible with the obligation to follow a schedule (Cass. Soc., 27 March 2019, no. 17-31.715). Thus, for the Court of Cassation, an employee subject to a schedule requiring his presence in the company cannot be subject to an annual fixed number of days (Cass. Soc. 15 December 2016 n°15-17.568 - Cass. Soc. 31 October 2012 n°11-20.986 - Cass. Soc. 27-3-2019 n° 17-31.71).
Does this mean that employees can do as they please during the working day?
The answer was given by the Court of Cassation in a ruling dated 2 February 2022 (Cass. Soc. 2 February 2022 no. 20-15.744).
In this ruling, the Court of Cassation confirmed a welcome solution, namely that an annual fixed-term contract in days does not give the employee the right to freely determine his working hours independently of any constraints linked to the organisation of work decided by the employer!
In this case, the Court ruled that the employer could impose half-days or full-days of attendance on the employee, depending on the constraints of the veterinary clinic's business, for appointments with the owners of the animals being treated. Outside this framework, the employee could organise her working day as she saw fit. She was therefore free to set her own hours and to determine her work schedule as she saw fit; the fixed annual number of days was therefore valid.
Should the size of the company be taken into account when setting up an annual fixed number of days?
In another ruling dated 25 January 2023 (no. 21-16.825), the Social Division of the Cour de cassation reiterated that the size of the company or the number of employees do not constitute criteria for assessing an employee's autonomy or for justifying not following the collective timetable. The only criteria to be analysed are the employee's organisational capacity and the actual way in which he/she carries out his/her duties.
What about the Syntec collective agreement?
In its rider of 1 April 2014 to the agreement of 22 June 1999 on working hours, the Syntec CCN limits the levels of employees who may be subject to an annual fixed number of days.
It states that employees who may be concerned are those :
Employees who are subject to the fixed annual number of days must be at least in position 3 of the management classification grid, or have an annual remuneration of more than 2 times the PASS, or be company officers.
Note: these provisions are those currently in force and extended. A rider currently awaiting extension was signed on 13 December 2022, amending the provisions of the agreement on working hours of 22 June 1999. In article 2.1, the amendment broadens the conditions of access to an individual agreement for a fixed annual number of days by authorising employees in position 2.3 to access this arrangement of working time.
The winning combo: a collective agreement and an individual fixed-term contract
There are two essential formalities that need to be fulfilled in order to set up a valid annual fixed number of days: firstly, the company must be subject to a collective agreement in the industry or have negotiated a company agreement providing for this arrangement of working time, and secondly, an individual fixed-term agreement must be included in the employee's contract of employment in order to obtain the employee's express agreement (a condition set out in Article L.3121-55 of the Labour Code - a condition taken up by case law: Cass. Soc., 19 Feb. 2014, no. 12-26.479).
In this respect, it should be remembered that, as company agreements take precedence over branch agreements, the provisions of both types of agreement, if they both exist in the company, should be checked to ensure that you are complying with the appropriate provisions! (DGT circular no. 20 of 13 November 2008)
Article L.3121-64 of the French Labour Code sets out the compulsory information to be included in the collective agreement. The agreement must include essential information, such as :
It must also include:
It should be noted that these last three provisions may be replaced by the introduction of these arrangements unilaterally by the employer, when the applicable collective agreement is not sufficient or does not contain such provisions. This possibility was introduced by the Labour Law to avoid calling into question a number of agreements that existed prior to the introduction of such provisions (Article L.3121-65 of the Labour Code).
According to the Labour Code, the individual fixed-term contract signed by the employee must only include the number of days worked. In practice, it will contain numerous references to the applicable rules, to enable the employer to fulfil its information obligations.
The special case of the SYNTEC collective agreement
According to article 4.2 of the Syntec Collective Bargaining Agreement, the conclusion of an individual agreement for a fixed annual number of days must be the subject of a written document signed by the parties, i.e. an employment contract or a rider attached to it.
The rider offered to the employee must explain precisely the reasons why the employee concerned is autonomous and the nature of his duties.
The individual agreement must refer to the applicable collective agreement of the branch or company and list :
It should be noted that, in accordance with article 4.4 of the Syntec collective bargaining agreement, the employee concerned must receive annual remuneration at least equal to 120% of the agreed minimum for his or her category on the basis of an annual package of 218 working days or the package defined by the company.
What if the employee refuses to sign an individual agreement for a fixed annual number of days?
Refusal to sign an individual agreement for a fixed number of days per year does not affect the employee's contract and does not constitute misconduct. The conclusion of a fixed-term contract in days constitutes a change to the employment contract in that it affects working hours, which are an essential element of the employment contract.
The employee's refusal to accept such a change does not constitute misconduct and therefore does not constitute grounds for dismissal (with the exception of a possible economic reason underlying a request to change the contract, in which case the procedure imposed in this type of case will have to be followed and the legal requirements and case law will have to be complied with, which will not be easy!)
The situation is the same when a fixed annual number of days agreement is put in place by means of a CPA (Collective Performance Agreement). Even in this case, it is considered that the employee can always refuse to accept the implementation of the package, and this refusal cannot be considered as grounds for dismissal per se! (DGT Q&A - The collective performance agreement - July 2020 - questions 16 and 18)
The principle
The number of days worked in a year and set by the collective agreement may not exceed 218 days per year, including the solidarity day, in accordance with article L.3121-43 of the French Labour Code.
Of course, the legal text specifies that this is a maximum number of days worked per year. A collective agreement may provide for a number of days less than 218 per year, in which case the company applying the agreement must comply with the limit set by the agreement (Cass. Soc. 9 July 2003 no. 01-42.451).
In this respect, the employee is in principle obliged to work the number of days indicated in the collective agreement.
The possibility of working a reduced annual number of days
It is always possible to agree with an employee on a ‘reduced’ number of days, i.e. less than the legal ceiling of 218 days or the applicable collective bargaining agreement.
This is not part-time work! In this sense, the legal provisions relating to contractual information are not mandatory, as the social chamber of the Court of Cassation pointed out in a ruling handed down on 27 March 2019 (no. 16-23.800).
In practice, the same individual agreement will be concluded with an employee, subject to any changes to be made to the number of working days scheduled over the year. The employee's remuneration will be adjusted accordingly (which will also have to be provided for contractually).
What are the obligations in terms of counting and monitoring days worked?
The latest legislative texts have adapted the applicable legal provisions to developments in case law, with a clear focus on the issues of monitoring the employee's workload and complying with the employer's health and safety obligations.
In this respect, the employer must comply with the provisions of article L.3121-60 of the French Labour Code, which states that the employer must ensure that the employee's workload is reasonable and allows for a proper distribution of working time.
This means that the collective agreement authorising the conclusion of fixed-rate day agreements must specify how the days worked are to be counted and monitored (in days or half-days).
If the agreement does not specify this, the employer is required to draw up a control document indicating the date and number of days or half-days worked. This document may be drawn up by the employee under the employer's responsibility. It may be a self-reporting system, provided that effective control is exercised by the employee's line manager over the document relating to his days and workload, as indicated by the social chamber of the Court of Cassation in a ruling dated 8 September 2016 (no. 14-26.256).
For a number of years now, the Cour de cassation has required that any agreement on a fixed annual number of days be concluded within the framework of a collective agreement, the stipulations of which guarantee that the amplitude and workload are reasonable. This is particularly clear from an important judgment of 29 June 2011, in which the Court of Cassation ruled for the first time that the employer must comply with the provisions of the agreement designed to ‘ensure the protection of the employee's health and safety’ (Cass. Soc. 29 June 2011 no. 09-71107).
These requirements were reiterated in the Labour Law of 8 August 2016 which enshrined the principles laid down in case law regarding the protection of the health and safety of employees subject to a fixed annual number of days agreement and provided for a certain number of compulsory statements on the subject, as we have seen above.
Henceforth, the employer's obligation to regularly ensure that the employee's workload is reasonable and allows for a proper distribution of his working time is also enshrined as a principle of public policy. (Article L3121-60 of the French Labour Code)
Generally speaking, the employer must put in place objective, reliable and contradictory monitoring.
In concrete terms, under the terms of Articles L.3121-64 and L.3121-65 of the French Labour Code, the employer must comply with the provisions of the relevant collective bargaining agreement or, in the absence of such provisions, must apply the supplementary measures set out in the law:
Specific provisions set out in the Syntec CCN
The latest agreements reached in the Syntec branch include a number of provisions relating to the employer's monitoring of rest periods, workload and the length of working days for employees subject to a fixed annual number of days.
In particular, articles 4.7 and 4.8 of the collective agreement set out the obligations of employers in the sector in terms of workload monitoring, behaviour in the event of an employee alert and the right to disconnect.
An obligation strictly assessed by case law
It is true that employees who have entered into a fixed annual number of days agreement are not subject to the provisions relating to the statutory 35-hour working week, maximum daily working hours or maximum weekly working hours, in accordance with the provisions of article L. 3121-62 of the French Labour Code.
However, this does not mean that the employees concerned are exempt from the framework, quite the contrary.
In fact, daily (11 consecutive hours) and weekly rest periods must be observed.
In a ruling dated 9 November 2022 (no. 21-13.389), the social chamber of the Cour de cassation laid down the principle that while the employer is responsible for controlling the amplitude and workload, it must also ensure that employees' rest periods are respected. In this case, the court found that while the agreement did include guarantees relating to employees' weekly and daily rest periods, the judges considered that these contractual provisions were not sufficient, as there were no specific measures to ensure that rest periods were monitored. The system relied exclusively on the employee's undertaking to ensure that his rest periods were respected. As a result, the fixed-rate agreement was deemed null and void and the employee was entitled to claim overtime pay.
In practice, the task is relatively arduous!
What about the SYNTEC CCN?
The Syntec collective agreement sets out all the legal obligations set out in the Labour Code.
In particular, it states that the employer :
Employees have the right to issue an alert in the event of unusual difficulties relating to work organisation or workload, or in the event of professional isolation. This alert triggers a mandatory meeting within 8 days, at which measures are taken, with a report and follow-up.
Once a year, the employer informs the elected representatives of the number of alerts issued by employees and the measures taken.
In the event of unusual difficulties, two annual interviews and a specific individual interview are held, to discuss the individual workload, the organisation of work in the company, the work/life balance, the employee's remuneration, and an assessment of the length of work-related journeys, the length of the working day, and the number of days not worked and not taken.
The general rule
In principle, rest days are determined at the beginning of the year (or reference period).
This calculation has to be made every year, as public holidays falling on working days vary from year to year (and, as some years are leap years, the number of calendar days may not be the same from one year to the next).
In practice, employees on a fixed annual number of days will benefit from 8 to 11 additional days off over the year, depending on this calculation.
The terms and conditions for taking rest days are generally set out in the collective agreement of the branch or company that introduced the fixed annual number of days agreement.
Where some employees still have days to take at the end of the rest period, special provisions in the collective agreement may provide for the deferral or payment of rest days. In some companies, a time savings account may also be set up.
In the absence of specific provisions in the agreement, employees who do not respect the rest period lose their rest days at the end of the period. However, it is up to the employer to prove that he allowed the employee to take his rest days! (Cass. Soc., 9 May 2019, n°17-27.448).
What if the employee works more than planned during the year?
There is a system commonly known as ‘buying back rest days’, which in practice allows an employer and an employee to agree to increase the number of days worked by the latter over the year.
This system is set out in articles L.3121-59 and L.3121-64 of the French Labour Code, which stipulate that the maximum number of working days per year may not exceed 235.
To be validly implemented, the following provisions must be complied with:
Special case of the SYNTEC CCN
Article 4.6 of the agreement of 22 June 1999 contains provisions relating to the purchase of rest days.
First of all, it states that the positioning of rest days per full and indivisible day for employees on an annual day package is at the employee's discretion, in consultation with management, in accordance with the proper functioning of the department to which the employee belongs.
It then specifies that, with the agreement of their employer, employees may buy back rest days by paying a minimum supplement of :
This buy-back scheme may not result in the number of days worked exceeding 230 days.
Depending on the case, two types of penalty are provided for, leading to the same sentence:
The difference lies in the fact that, in the second case, the employer is able to regularise the situation for the future, which is not possible in the first, unless appropriate agreements are renegotiated.
In both cases, the employee will be able to claim back pay in respect of overtime for the period during which the fixed number of days was not applied, or for the period during which the employer failed to meet its obligations.
In this context, the employee will be able to claim back pay for overtime within the limitation period (Cass. Soc., 27 March 2019, no. 17-23.314).
The employer will be liable to a number of other penalties, such as undeclared work, damages for unfair performance of the employment contract, for failure to comply with the rules on rest periods and maximum working hours, or for failure to comply with health and safety obligations.
In return, the employer will be able to seek reimbursement of rest days taken by the employee under an agreement that eventually became ineffective or null and void. (Cass. Soc. 4 December 2019 n°18-16937)
There have been many significant rulings in this area, which should not be overlooked!
Want to find out more? Watch our special video on ‘Annual days’ here.