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Cadres dirigeants : vous pouvez obtenir le paiement de vos heures supplémentaires si vous n'appartenez pas à la Direction de l'Entreprise !

Dans un arrêt du 31 janvier 2012 (n°10-24412), la Cour de cassation confirme que le recours à la notion de cadre dirigeant est limité aux salariés qui participent à la Direction de l'Entreprise.

 1) Le cadre dirigeant selon le code du travail

 L'article L.3111-2 du Code du travail définit la notion de cadre dirigeant.

 Il exclut ces derniers du champ d'application des Titres II (durée du travail, répartition et aménagement des horaires) et III (repos et jours fériés) de la troisième partie livre premier du Code du travail.

 Dans un arrêt du 31 janvier 2009 (n°06-46.208 P+B+R),la Chambre sociale de la Cour de cassation, dans un attendu de principe, rappelle que : « sont considérés comme ayant la qualité de cadre dirigeant les cadres auxquels sont confiées des responsabilités dont l'importance implique une grande indépendance dans l'organisation de leur emploi du temps, qui sont habilités à prendre des décisions de façon largement autonome et qui perçoivent une rémunération se situant dans les niveaux les plus élevés des systèmes de rémunération pratiqués dans leur entreprise ou établissement ».

 La Haute Cour a rappelé que ces critères sont cumulatifs. La Cour de cassation a précisé que « le juge doit vérifier précisément les conditions réelles d'emploi du salarié concerné, peu important que l'accord collectif applicable retienne pour la fonction occupée par le salarié la qualité de cadre dirigeant ».

 En l'espèce, les juges auraient dû vérifier si les conditions réelles d'emploi du salarié justifiaient la qualification de cadre dirigeant, avant de rejeter une demande de paiement d'une indemnité de RTT.

 2) Le Cadre Dirigeant est celui qui participe à la Direction de l'Entreprise !

 Dans l'arrêt du 31 janvier 2012, la Cour de cassation rappelle que n'est pas cadre dirigeant qui veut.

 La Cour de cassation relève que le cadre dirigeant doit participer à la Direction de l'Entreprise ; autrement dit, le cadre supérieur n'est pas nécessairement cadre dirigeant.

 La Cour de cassation considère que le Cadre Dirigeant doit Participer à la Direction de l'entreprise ; il doit Diriger !

 La notion de cadre dirigeant est limitée aux plus hauts dirigeants de l'entreprise ; à défaut, les intéressés peuvent obtenir le paiement des heures supplémentaires travaillées au-delà de 35 heures !

 A bon entendeur !

 

Frédéric CHHUM

Avocat à la Cour

 4, rue Bayard 75008 Paris

Tél : 01 42 89 24 48      

Ligne directe : 01 42 56 03 00      

 e-mail : [email protected]

blog: http://avocats.fr/space/avocat-chhum

France: the end of “service agreements”(“contrats de collaboration”) for French lawyers (“avocats”)? (Court of Cassation May 14th 2009)

1)      Facts

Since July 26^th 2001, lawyer Mrs. C., was working in the French Law office “J.B” under a “service agreement” (“contrat de collaboration”). Her service agreement with “J.B” office was established for an indefinite period of time. However, at the end of October 2005, the law firm terminated it. Subsequently to this, Mrs. C., referred the matter to the “President of the Bar” (le “Bâtonnier”) and asked him to reconsider her service agreement and redefine it as a classical contract of employment.

On January 21st 2008, the Court of Appeal of Lyon, countering the arbitration judgment returned by the “Bâtonnier”, welcomed the demand of the claimant and viewed the breach of contract of Mrs. C. as a “dismissal without real and serious cause”. Subsequently, the French office of lawyer “J.B” was condemned by the Court of Appeal of Lyon to pay several sums to Mrs. C.  

Dissatisfied with this decision, the law firm claimed an appeal. In a judgment of May 14th 2009, the civil appeal division of the superior Court of Cassation rejected it, considering that the main demand of the claimant to re-qualify her service agreement in a classic contract of employment was legally justified.

2)      Solution

The Court of Cassation agreed with the Court of Appeal of Lyon in its decision; however it did not follow the same reasoning. Indeed, the superior court considered the decision returned by the Court of Lyon as partly deprived of legal basis as far as it re-qualified the contract of Mrs. C. in contract of employment while recognizing that she was able, during her 5 years spent within the office “J.B” to develop 5 private files, which means 5 personal clients. As such, the Court of Cassation reminded that “salaried lawyers” (“avocats salariés”) distinguish themselves from “liberal lawyers” (“avocats indépendants”) mainly because the first ones are not allowed to develop their own clientele.

To justify the rejection of the appeal required by the French office “J.B”, the Court of Cassation insisted on the “real conditions” of work of Mrs. C., underlying that she was not totally “free” to develop her own clientele while her service agreement was permitting it.

In this specific case, Mrs. C., who had concluded a service agreement, had been able to follow only 5 personal files in 5 years of work at “J.B” office. The Court of Cassation then considered that the “valueless” number of private files performed by the lawyer as well as the working conditions, particularly the logistic ones (the sharing of Mrs. C.’s desk with another lawyer as well as the sharing of the computing and phone tools), could hinder the technical independence which deeply characterizes and differentiates a “liberal lawyer” (“avocat indépendant”) from a “salaried one” (“avocat salarié”). As a consequence, the requalification of Mrs C.’s service agreement in contract of employment, by the Court of Appeal of Lyon, was legally justified.

3)      Legal consequences

The judgment of the first civil appeal division of the superior Court of Cassation, given on May 14th 2009, considers that the processing of a valueless number of private files for a lawyer working with a law firm under a service agreement, does not constitute - even if possessing personal clientele is banned for “salaried lawyers”- an obstacle to the qualification of this contract in contract of employment. Indeed, since it is established that the specific situation is not determined by the liberal/independent lawyer’s will and facts, but as a consequence of his or her general working conditions; then he or she can pretend to see his or her contract re-qualified as a contract of employment.

The impact of this decision is very important. The social welfare of “salaried lawyers” (“avocats salariés”) is not the same as that for “liberal/independent” ones (“avocats collaborateurs indépendants”) in France: the obligations for payment of diverse compensations and allowances for the employees, but also the direct application of labor law rules etc… could, as reported by numerous authors of doctrine, increase the number of salaried lawyers in the next few years. In the same way, it is the maintaining of the intrinsic liberal character of the profession, which is at stake…    

 

Frédéric CHHUM    Avocat à la Cour

Linda MAMAR-CHAOUCHE

Secondee / expatriate workers (“détaché / expatrié”) from French companies and unemployment benefit

Employers (French company) have to insure all their secondee abroad and French expatriate workers against the unemployment risk (article L. 5422-13 of the French Employment Code).

 

In this respect, employers situated in France which sent on secondment (“detache”) or expatriate their workers abroad must pay contributions to the French unemployment insurance (ASSEDIC) for those workers.

 

Moreover, the Paris Court of appeal, in the decision of March 18^th, 1993, C. Cournac c/ Société Altshom International, conferred to this principle the character of an overriding mandatory provision. The Court judged that every company which has its registered office in France must affiliate to the unemployment insurance every detached worker and every French worker expatriated.

 

Exceptions are foreseen at the article L. 5424-1 of the French Employment Code (employers who are in charge themselves of the service charges and management of the unemployment benefit (officers of the State and territorial authorities’ public service, non statutory workers of the craft chamber, trade and industrial chambers and farmers’ chamber and France Telecom’s civil servants).

 

This obligation of affiliation to the unemployment insurance of the secondees and French expatriated workers of French companies does not have to be forgotten by the human resources managers.

 

Frédéric CHHUM Avocat à la Cour

Anissa YEFTENE

Workers who are victims of an age discrimination : which rights under French and EU Law ?

Today, age is one of the first discrimination grounds in Europe and in France. People who are the most concerned are the “young” who start on the labour market and the “old” who are near from retirement.

The EU Law creates a global law protection against those discriminations.

1)      General Principles

Following the article 13 of the EC Treaty, the Directive 2000/78 of November 27^th, 2000 “creating a general framework in favor of equality treatment in the employment and work area” rules the fight against work discriminations and especially discrimination based on age.

The famous decision Mangold of November 22^nd, 2005 proclaims a general principle of EC Law of non-discrimination based on age.

This principle is very specific because it permits a huge number of justifications of discrimination, even direct, based on age.

2)      Special dispensation

Indeed, Member States can foresee some justifications for social political reasons : employment, labour market and professional training.

Employers can also justify direct discriminations based on age when they prove an essential professional requirement and regarding to involuntary retirement (“mise à la retraite d’office”).

The European Community Court of Justice decided in the case law Palacios de la Villa of October 16^th, 2007 that involuntary retirement was a reason to justify a breach of the principle of non-discrimination based on age.

This decision has been remind in the ECCJ’s case law of March 5^th, 2009 The Incorporated Trustees of National Council on Ageing. Employer can dismiss an employee who reaches the retirement age if he proves that the means used were necessary and suitable.

However, the ECCJ makes sure that Member States respect the proportionality principle and apply the lawful and objective justification test.

Indeed, in any case, each special dispensation to respect the non-discrimination principle has to be justified by a lawful and proportional aim and the means used have to be necessary and suitable.

States must exercise this control without the necessity to make an exhaustive list of the justified discriminations.

The principle of non-discrimination based on age is protected by the European Law but in certain circumstances, the right to be distinguished according to age interferes with this principle.

This is the reason why the European Union tempts to construct an age protection of the European workers by including non-discrimination and a right to be distinguished, especially by the means of positive actions.

3)      European Union scope

However, this protection is limited to the EC scope. It was stated in ECCJ’s case law of September 23^rd, 2008 Bartsch.

A link is necessary between the challenged Statute and the European Law : article 13 TCE was not applicable to release the ECCJ competence and the Directive 2000/78 is not applicable when facts happened after the transposition of this latter.

4)      Assistance and appeal

Finally, one person who thinks he/she is victim of a discrimination based on age has, in each Member State, privileged interlocutor and specific appeal : in France, associations, trade unions, Comities or even Worker Inspector can be used and the HALDE (with is the specific independent organization competent for discriminations) is an alternative way to rule the cases which is very efficient and more and more used. At the latest step, employee could refer the case to the Employment Tribunals.

 

Frédéric CHHUM Avocat à la Cour

Anissa YEFTENE

« Equal pay for equal work » or the end of discretionary bonus ? Inventory of fixtures about the principle of equal treatment

By a decision of April 30rst, 2009 n°07-40.527, the French Supreme Court of appeal (Cour de cassation) completes its case law about the principle “equal pay for equal work” by broadening it to the traders’ bonus.

1)      Facts and procedure

A trader qualified as a “financial analyst” was given a variable bonus. This one was fixed discretionary by the employer.

 

Contrary to his colleagues, the trader has seen his bonus progressively reduced each year, then totally suppressed by the employer, before being fired.

 

This employee raised the case to the French Employment Tribunal (Conseil de prud’hommes) by claiming discrimination.

 

The Court of appeal rejected his claim by stating that the discretionary criterion of this bonus prevented the application of the principle “equal pay for equal work”, and that the employee did not bring the evidence to be victim of discrimination.

 

Then the employee went to the Supreme Court of appeal (Cour de cassation) which received his claim favourably.

2)      Solution

First, the Supreme Court of appeal reminds that it is to the employer to establish that the wage difference between employees doing the same work is justified by objective and discerning elements.

French judges apply the European Community Law in the discrimination and equality of treatment matters.

The objectivity requirement chases away the discretionary power and the discerning requirement refers to the respect of the proportionality principle, dear to the European Community.

The evidence supported is lightened for the employee who only has to bring some facts which presume the difference of treatment. The employer would have so to establish that the wage difference is justified. 

Moreover, the Supreme Court of appeal adds that the employer cannot put forward his discretionary power to escape from his obligation to justify unequal measures (See the press release from the Cour de cassation: www.courdecassation.fr).

As a conclusion, the Social Chamber rightly decides that regarding to the principle “equal pay for equal work” the only fact that a bonus is leave to the free assessment of the employer, does not justify a wage difference.

An employer cannot give bonus and taking them back at will. He has to respect the principle “equal pay for equal work” or prove a possible objective and discerning reason, which will be check by judges who will assess it advantage by advantage.

Regarding to this case law, in our opinion, employer cannot grant discretionary bonus anymore, each measure taken would have to be justify regarding to the principle “equal pay for equal work”.

The advice to employers could be to inform in advance the employees about the bonus attribution criterions, by the means of memorandum or negotiation with trade unions. Transparency reigns. 

Frédéric CHHUM avocat à la Cour

Anissa YEFTENE

What is a senior executive (cadre dirigeant) under French law?

Senior executives are not subject to the time work dispositions. It is tempting for some companies to confer this legal status to all the senior executives.

Nevertheless, the French Supreme Court (Cour de cassation) has put some limits to this practice by reminding the conditions which rule the senior executives’ status.

In this case, a company gave the senior executives status to all its senior executives. In 2005, one of them has been dismissed. This one referred the case to the French Employment Tribunal (Conseil de Prud’hommes) to challenge his manager status and to apply for an overtime pay back.

The Dijon Court of Appeal, on November, 28^th 2006, decided that this director did not have the senior executive status and condemned the company to pay him some amounts as overtime pay back and compensatory work off.

The company referred the case to the French Supreme Court (Cour de cassation).

The Social Section of the French Supreme Court rejected this claim, because the concerning senior executive, who was director of a company’s shop,  was not part to the higher wages of the company and had no staff recruiting capacity, outside of any directive from his immediate superior, nor even to apply a business politic defining his own.     

The Court also reminds that : “the senior executives is defined by the article L. 212-15-1, becoming L. 3111-2 of the French Employment Code, as the one who is entrusted responsibilities which of the importance involved a huge independence in his timetable organization, who is able to decide in a broadly autonomous way and who receives a wage situated at the highest level of the wage system practiced in the company or the establishment.”

Companies have so to confer the manager status to a handful of their senior executives ; failing that, the penalty is heavy : potentially condemnation to pay overtime with a 5 years prescription.

 

A word to the wise!

 

(Cass. Soc. 18 juin 2008 n°07-40.427)

Frédéric CHHUM

Anissa YEFTENE

 

Maître Frédéric CHHUM, counsel of Intersafe Abrium’s Works Council

Maître Frédéric CHHUM advised and assisted Intersafe Abrium’s Works Council in the redundancy procedure framework, engaged by the company in March / April 2009.

 

Maître Frédéric CHHUM is experienced in advising and assisting Works Council and companies in the framework of redundancy implementation (Works Council consultation (Books 1 and 2 of French Labour Code), implementation of the Employment Safeguard Plan (Social Plan) etc).

 

Maître Frédéric CHHUM assists also employees, Works Councils and companies for all individual and collective litigations linked to redundancy (French Civil Tribunals and French Labour Tribunals).

Can a company conclude a conventional breach agreement (“rupture conventionnelle”) with an employee in a redundancy framework ?

The circular n°2009-04 of March, 17th 2009 dealing with the conventional breach of no-ending contracts, specifies, in particular, the possibilities to use a conventional breach in a redundancy framework.

 

Indeed, the Law of June 25^th, 2009 already limited the use of the conventional breach by excluding from its field the part of the French Labor Code about redundancy.

 

The circular of March, 17^th 2009 specifies today such limitation’s impact.

 

The circular (§1.3 and 1.4) points out that the conventional breach of contract and its following procedure are not applicable advantages when a protective provision of the freedom of consent already exists.

 

Thus, the out of court breach of contract, happening in the field of specific agreements as for example the anticipated management of employments and capacities (“Gestion prévisionnelle des emplois et des compétences”) or in the field of a social plan (“Plan de sauvegarde de l’emploi” : PSE) is clearly excluded from a conventional breach field.

 

Then, the circular explains the risks of a conventional breach in redundancies framework, especially collective ones.

 

In the opposite, if a firm suffers of economic difficulties, or even applies a social plan to some employments, it is not enough to exclude the conclusion of a conventional breach agreement.

 

Nevertheless, the happening of conventional breaches in such economic context, in a coordinated and organized way, can constituted deep suspicion evidence of ousting attempts of the legal redundancy procedure.

 

To conclude, it is not strictly forbidden for an employer to negotiate a conventional breach when redundancies are planned in the firm.  

 

Procedures have to be separated and independent at that time.

 

In those circumstances, it is foreseeable that the Labour Authority (DDTE) will check that the redundancy procedure would not be ousted.

 

Frédéric CHHUM / Anissa YEFTENE

Whatever the amount is, the freelance journalist’s seniority bonus has to be added from the basic wage

The French Supreme Court stated in a case dated of February 4^th, 2009, that when freelance journalists (“pigistes”) fulfill the seniority conditions to obtain a seniority bonus, their wage tally with the professional qualifications have to be increased regarding to this bonus.

 

In this case, a freelance journalist claimed for a back seniority bonus and related days off, by enforcement of the articles 22 and 23 of the Professional Journalists National Collective Agreement.

 

The Court of Appeal confirmed by the Supreme Court, considers that, regarding to the collective agreement provisions, wages increased by a seniority bonus constitutes the minimum amount that anyone must receive for one month period of normal work.

 

The seniority bonus only constitutes an increase of the minimum guaranteed wage and not a bonus added to the wage, never mind its amount.

 

No matter if the wages are not wholly less than the minimum wage (SMIC) or the minimum tariff of the freelance journalist piecework.

 

Frédéric CHHUM / Anissa YEFTENE

The definition of the senior executive controlled by the French Supreme Court

The article L.3111-2 of the French Labour Code defines the senior executive (“cadre dirigeant”) notion. It excludes them from the field of the titles II (working hours, distribution and organisation of hours) and III (weekly day off and bank holiday) of the thirst part of the French Labour Code.

 

In the decision of the 13rst January 2009 (n°06-46.208 P+B+R), of the Social Chamber of the French Supreme Court, in its ratio decidendi, reminds this definition of the senior executive.

 

Indeed, the Court states that « are considered as senior executives, executives to whom are entrusted responsibilities whose the importance involved a great independence in their timetable organisation, who are authorized to take decisions in a widely autonomous way, and who received a wage situated at the highest level of the wage systems practiced in their enterprise or establishment ».

 

The Supreme Court reminds that those criterions are cumulative.

 

Finally, the French Supreme Court states that « the judge has to check clearly the real employment conditions of the concerned employee, no matters if the applicable collective agreement deducts the position of senior executive regarding to the function holding by the employee ».

 

In this case, the judges should have to check if the real employment conditions of the employee justified the senior executive qualification, before rejecting a request for payment of RTT (reduce of working time) compensation.

 

When the judges rule cases opposing an employer and a senior executive, they have to check exactly the conditions of the article L.3111-2 of the French Labour Code which are cumulative. They cannot be linked with the terms of a collective agreement.

 

As a conclusion, none can be senior executive at will, the conditions have first to be fulfilled.

 

Frédéric CHHUM / Anissa YEFTENE