As a reminder, an annual global working day arrangement allows the calculation of working time in days over the year, rather than in hours. The maximum number of worked days is generally 218 days/year (depending on the applicable Collective Bargaining Agreement (CBA). It is only possible to agree such an arrangement in the employment contract if it is provided for in the applicable CBA and for employees belonging to the “cadres” category or for itinerant employees (depending on the CBA’s requirements).
In addition, either these employees must have autonomy in the organisation of their working schedules and perform duties which by nature do not allow them to follow the collective working schedules applicable to their department or team; or these employees’ working time cannot be predetermined and they benefit from a real autonomy in the organization of their working schedules for performing the responsibilities entrusted to them.
– The “Labour” Law of August 8th, 2016 aims to secure arrangements in days –
When deciding on the validity of an annual working time arrangement in days, the right to health and rest of the employee was a priority for the French High Court. In this framework, it has been established that the validity of such arrangement was notably depending on compliance with mandatory maximal durations of work as well as with minimum daily and weekly rest times.
Until the Labour Law of August 8th 2016, the High Court considered that rules of compliance were to be provided by the applicable CBA, otherwise the arrangement in days would be invalidated. In this context, the employee could claim payment of overtime and compensation for non-compliance with mandatory maximal durations of work and minimum rest times.
The Labour Law attempts to respond to the High Court’s requirements by securing the framework of such arrangments in days. In this respect, it is still possible to agree an arrangement in days on the basis of a CBA preceding this new Labour Law provided that the employer complies with the following obligations:
- introduction of a document to monitor and track the number and dates of days and half-days worked by the employee
- organization of an annual review with the employee to discuss workload, organization of work, work-life balance and remuneration
- implementation of means to comply with the mandatory daily and weekly rest times.
Furthermore, when a CBA preceding this Labour Law is revised to comply with legal requirements, the individual arrangement in days will continue to be in effect without the agreement of the employee being required.
– Right to disconnect –
The “Labour law” has also formalized the right to disconnect which was already provided for by some CBAs. In companies for which the applicable CBA provides for this right the employer must implement appropriate means referred to in their CBA in order to comply with the right to disconnect of their employees.
In companies with less than 50 employees, for which the applicable CBA does not provide for the mode of exercise of this right, the employer must determine such mode and communicate this information to the concerned employees by any appropriate means. Because all employees are concerned by this right, whatever their working time arrangement, a Company memo could be an appropriate means of communication.
– Additional mandatory indications in the Collective Bargaining Agreement –
Before the “Labour” Law, the CBA providing for the arrangement in days needed to include 3 provisions, i.e. the categories of employees concerned by such arrangement, the number of worked days included in the arrangement (maximum 218 days), and the main features of the arrangement.
Now , any CBA agreed since August 9th 2016 must also include the following additional provisions: reference period of the arrangement; conditions for taking into account from a salary perspective, the absences and arrivals/departures during the reference period; means of regular monitoring and assessment of workload; means by which the employer and employee discuss periodically (once a year minimum) workload, work-life balance, remuneration, as well as the organisation of work within the company; and mode of exercise of the employee’s right to disconnect from remote communication tools.
The CBA can also provide for the possibility and conditions of the waiver of rest days at the employee’s request, in agreement with the employer and in counterpart of an increased salary rate (minimum 110%). The amendment to the employment contract providing for such waiver is valid for the year during which it has been signed. If the applicable CBA does not provide for this option of waiver, the “Labour” Law now provides for subsidiary provisions allowing to sign such an amendment of waiver.