Over the past few years, French case law has subjected to increasingly strict scrutiny employers using “forfait jours”, which is a specific method of working time for autonomous executives (whose working time is calculated as a number of days over the year rather than a number of hours per week).
In 2011, the French Supreme Court held that such method could only be used if the relevant collective bargaining agreement permitting recourse thereto included provisions protecting employees’ right to rest periods and health and safety measures.
In a new development, the Supreme Court has recently applied such principle to companies subject to the SYNTEC industry-wide collective bargaining agreement (which covers, inter alia, the consulting sector), holding that the provisions of such industry-wide CBA do not guarantee that the volume of work and work load remain reasonable, and does not ensure a fair distribution of work amongst employees (and therefore their health and safety). The Supreme Court therefore held that “forfait jours” agreements entered into by employers with employees of the SYNTEC branch and based solely on the industry-wide CBA are null and void.
Employers subject to the SYNTEC CBA in France should bear in mind two main points:
– Employers using the “forfait jours” method for their autonomous executives without having signed beforehand a collective bargaining agreement at the company level (as opposed to an industry-wide level) incur a risk of claims for overtime by the employees concerned. A possible solution, for the future, would be to conclude such company collective agreement including specific provisions creating a framework protecting employees subject to “forfait jours” (in terms of rest periods, follow up, etc.),
– Employers using “forfait jours” having entered into company agreements transposing the industry wide CBA in relation to “forfait jours” should check that such agreements include the necessary protective provisions. If this is not the case, it is strongly advisable to renegotiate such agreements.
Hopefully, employers and employees’ unions at the industry level will be able to conclude an agreement to amend the current SYNTEC provisions so as to secure for the future the recourse to “forfait jours”.