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On 29 June, the French Supreme Court took its first decision on the system of measuring working time for managers called ‘forfait-jours’, where they work a fixed number of days per year. The case had been expected since hundreds of thousands of workers are subject to this system. The court ruled that French law and collective agreements are compatible with European and international sources, but employers will have to take the health and safety of managers more into account.
French law provides an original system of measuring working time for managers. Instead of calculating how many hours they work, managers can have their working time calculated on the basis of the number of days worked per year, regardless of how many hours they work during each day.
According to the law, social partners can set by collective agreement a maximum of 218 days to be worked per year. But with the employee’s consent, it is possible to extend the number of fixed working days up to 235 days or even more.
If employees work more than 218 days, they are granted extra pay – but this does not by law have to be paid at a higher rate. The only limits set by law are related to periods of rest. Managers subject to this so-called ‘forfait-jours’ are entitled to a daily rest of a minimum of 11 consecutive hours and a weekly rest of 24 hours.
The Committee of European Social Rights, in charge of controlling the implementation of the European Social Charter, declared in 2000, 2003 and 2011 that this system of a fixed number of working days violates both articles 2 and 4 of the charter: the former provides that workers should work ‘reasonable daily and weekly working hours’; the latter provides that workers should have a recognised right ‘to an increased rate of remuneration for overtime work’.
Since the only limits are the compulsory periods of daily and weekly rest, it appears that a manager subject to this system could potentially work up to 278 days per year without fair financial compensation, which is contradictory to both provisions of the charter.
In a case where a manager challenged the ‘forfait-jours’ and claimed financial compensation for overtime, the French Supreme Court analysed French law in light of European and International Sources.
In the case of 29 June 2011 (in French), the court reached a compromise between the parties representing the employer and employee. The ruling was based on the relevant provisions of the Labour code and the collective agreement at stake, interpreted in light of the following instruments:
Analysing all these sources, the court considered that if the system of ‘forfait-jours’ was not incompatible in itself with international law, in practice, collective agreements must meet certain requirements in order to avoid annulment.
The requirements to meet were listed by the Supreme Court as:
This important ruling will force companies and social partners to verify that sectoral and company agreements are compatible with criteria set by the judge. The lower courts will have to check not only that these requirements are provided for in collective agreements, but also that they are applied in practice.
This could lead to the invalidity of many collective agreements since employers often neglect to carry out interviews with managers and to assess their workload, or even to count the number of working days. Such agreements do not usually stipulate that managers should work a maximum of 10 hours per day or 48 hours per week.
According to the employer organisation the Movement of French Enterprises (MEDEF), this decision is satisfactory since it supports the system of the ‘forfait-jours’. Unions also seem to approve, since negotiations will play a great part in the design of a new framework, which is more in tune with the protection of employees' health and safety.
One might wonder whether the law should be modified in order to clarify the status of the ‘forfait-jours’. In particular, the question of the scope of employees who can be subject to this system of fixed working days, which is very broad under current law, and the financial compensation offered for overtime should be revised. Health and safety rules should guide the new legislation.
Jean-Philippe Lhernould, University of Poitiers, HERA