France: Flexible working time arrangements - for businesses applying the SYNTEC collective bargaining agreement

Employer and trade union organisations in industries applying the SYNTEC collective bargaining agreement (including in particular a number of consultancy businesses and professional service firms in France) have now reached agreement on an amendment to the national collective bargaining agreement to permit the continued use of forfait jours arrangements.  The agreement was signed on 1 April 2014.

Reminder of the legal issue and risks : In a decision dated 24 April 2013, the French Supreme Court held that the provisions of the SYNTEC collective bargaining agreement permitting working time to be based on a maximum number of days per annum (218 days), rather than weekly limits on working time, was not compliant with the European Working Time Directive and therefore unlawful, as it did not sufficiently protect the health and safety of employees.  This called into question the legality of the arrangements widely in place throughout the industry and exposed businesses to the risk of claims for overtime (up to 3 years retroactively) and claims for damages of up to 6 months' remuneration per employee.

The SYNTEC collective bargaining agreement has now been amended to seek to deal with the elements identified by the Supreme Court as deficient and now includes the following key additional protections for employees, which should mean that employers covered by the SYNTEC collective bargaining agreement can continue to apply these forfait jours arrangements.

Practical advice : employers covered by the SYNTEC collective bargaining should ensure that they comply with the requirements below to ensure that they minimise the risk of overtime, damages and/or health and safety claims.  This will require adaptations to the contracts of employment and ensuring that the procedures to monitor working time are correctly in place.

• The definition of the employees who can benefit from these more flexible working time arrangements has been clarified and limited as follows " employees undertaking extended management responsibilities or commercial roles, consultant roles or undertaking roles which are conceptual, creative or supervising work, with a large autonomy, liberty and independence in the organisation and management of their working time."
•  To benefit from these arrangements, the employees must:
  • have a large autonomy in terms of their initiative and assume fully and entire responsibility for the time they devote to undertaking their roles; 
  • have a large latitude in the organisation of their work and the management of their time;
  • be (i) at least at position 3 of the classification grids for executive (cadre) level staff or (ii) have an annual remuneration in excess of 2 x the annual social security cap (currently 2 x €37,548 = €75,096) or (iii) be officers of the company. 
• Employees must also enter into an individual agreement to work on the basis of forfait jours (i.e. this should be included in the contract), which must explain clearly why the employee is considered to be autonomous in the organisation of their working time and which must set out the nature of the role justifying the recourse to forfait jours, the number of days worked per annum (maximum of 218), the remuneration (which must be at least 120% of the minimum levels provided under the collective bargaining agreement for this grade, assuming 218 days worked per annum) and the number of meetings per annum at which workload will be reviewed (being at least twice a year).
• Employees can renounce the right to the additional rest days (usually around 9-10 days per annum) allocated to reach this maximum number of working days per annum, provided they are paid additional remuneration for such days (+20% for up to a maximum of 222 days worked per annum and +35% for days in excess).
• The overall minimum rest periods of 11 consecutive hours per day and 35 consecutive hours per week continue to apply (with an obligation to not use electronic devices to work during such periods).
• The employee must keep the employer regularly informed of events which have unusually increased his or her workload.  If there is an unusual circumstance of this nature, the employee can sent the employer an alert, and the employer must respond within 8 days, setting out the measures which it will put in place to deal with the situation.  The health and safety committee must be informed once a year in relation to the number of alerts received.
• An annual report must be prepared on the organisation of the working time, length of business trips, individual workload and the length of working days, and the number of days not taken as additional rest days.
• At the request of the employee, the employer must put in place a specific medial visit for employees on forfait jours arrangements.