Following Kathryn Pickard's article on the French "clocking-off" agreement, Katie Rigg spoke to Jennifer Carrel and Aurore Tissandier of the law firm UGGC Avocats in Paris (http://www.uggc.com/en) to seek their views on the agreement and its effect on French labour law.
Kathryn's article can be accessed via the following link: Kathryn Pickard.
K.R. What is the clocking-off agreement?
J.C. The "clocking-off" agreement is an amendment to a labour agreement signed on 22 June 1999. It came into force on 1 April 2014 and applies to certain digital technology and consultancy sector workers. The agreement is the result of a French Supreme Court (Cass. soc. 24 avril 2013, n° 11-28398) decision which invalidated the provisions of the forfait jours in the consultancy sector.
K.R Could you briefly explain the term "forfait jours"?
J.C. "forfait jours" are independent executives and employees who have no fixed contractual hours and whose working time is calculated in days per year (rather than hours per week).
The forfait jour agreements specify a number of working days per year (typically 218). Such agreements entitle the employee to daily and weekly rest periods but they do not give employees any entitlement to overtime payments. Furthermore, the 35 hour working week does not apply to forfait jours and in theory these employees could be required to work up to 13 hours per day.
The forfait jours agreements are atypical and in order to employ workers on this basis companies are required to enter into either an in-house agreement or an industry-wide agreement and an individual agreement with the concerned employee.
K.R. Can you explain the background to this agreement?
A.T. In 2011 the Supreme Court began questioning the validity of forfait jours agreements and has since invalidated a number of these on the basis that they do not adequately protect employees' health and safety.
These decisions enabled employees to claim back pay in relation to any hours worked above the 35 hour limit (going back three years). This was a very stressful time for employers and the only remedy was to negotiate in-house agreements which were subject to strict conditions and which could only be drawn up in conjunction with unions or employees’ representatives. Given this legal insecurity, the consultancy sector considered that there was no other choice but to negotiate the clocking-off agreement.
Katie Rigg: What are your views on the coverage by the English press of the "clocking-off" agreement?
J.C.: The English press coverage of this agreement was inaccurate in many respects. For example, many articles stated that the agreement prevented employees from staying in the office beyond a certain time and forbade them from reading their emails after 6.00 pm. It also implied that the agreement applied to all French employees. This is not accurate: the agreement only applies to the consultancy sector (SYNTEC) and many workers within SYNTEC are not subject to the agreement.
NB: For a summary of the main provisions of the agreement please see Kathryn Pickard's article.
K.R. What are your views on this agreement?
A.T. Although I understand the need to protect employees, this new labour agreement puts a significant burden on employers. It also places the responsibility for compliance on the employer, irrespective of the employee's wishes. Therefore, employers need to put in place arrangements which enable them to actively monitor compliance - this of course has a cost implication and is counter-productive in consideration with the employees’ autonomy.
The agreement also removes the flexibility afforded by the forfait jours. Having said this, the forfait jours agreements were occasionally abused by employers who wished to avoid paying for overtime. The Court wanted to penalise this kind of behaviour so from now on the forfait jours have to be handled extremely carefully.
In terms of our role, we help clients implement the agreement by coming up with simple and practical devices to monitor employees' workload. We also assist our clients with the collective bargaining process.
K.R. Do you think this agreement will have an impact on French law and/or on other agreements?
J.C. Eventually, we can expect the professional branches as a whole to negotiate new restrictions to the forfait jours. However I do not think that the forfait jours will disappear anytime soon.