On the 7th of October, the cassation court judges the case of a company who did not pay one of its employee due to a lack of check-up with the occupational medicine.
The employee suffered a work related accident. After the end of his sick leave the employee did not do his medical check-up with the occupational medicine. The company did not pay the employee his time after the sick leave.
When an employee is on sick leave the employment contract is suspended. In some cases, a medical check-up is mandatory for the employee to return to work after a sick leave. Until the employee does the check-up the employment contract is suspended.
A check-u with the occupational medicine is mandatory.
Therefore, the judges considered that the employer what within his right not to pay the employee as the employment contract was suspended.
This judgment is a good reminder that some medical check-up are mandatories. Without this check-up the contract cannot be continued, changed or terminated.
When and someone is illegally employed, the employer and the employee do not pay the social contributions.
When this undeclared employment is find out, the URSSAF (social security) contributions must be paid.
On what basis is the URSSAF adjustment paid?
As the salaries have not been declared, it is very difficult for the social security to know on what basis the contributions must be calculated.
Previously the adjustment was calculated on 6 times the monthly minimum wage salary (SMIC). In 2015 is was worth 8 745,12 €.
In 2016 the fixed basis for the contribution adjustment should be of 25% of the annual social security ceiling (9 510 € in 2015).
Find out more on the illegal employment and the URSSAF in our database accessible on our site for registered members.
A truth telling company was issuing pay slips for its employees with the indication that no collective bargaining agreement applied.
The employees went to court claiming that the “Telecommunication” collective bargaining agreement applied.
The consequence was that the minimum wage rate would have been the one from the collective agreement and not the legal minimum wage (SMIC).
The employees’ claims were supported by the fact that they were working with telecommunication technologies (the phone) and that the company had no other activity that truth telling on the phone.
However, it was written on the pay slips that “no collective bargaining agreement applies”.
There for the cassation court dismiss the employees’ claim.
“no collective bargaining agreement apply” written on the pay slip is binding.
The lesson of this judgement is to be very careful of what collective bargaining agreement is written on the pay slip. Whatever is written may be binding for the employer.
Find out more on the collective bargaining agreements in our database accessible on our site for registered members.
On the 2nd of November 2015 the official public services web site republished a note about the penalties for illegal employment. Here is a summary of the note.
What is the illegal employment?
Illegal employment is:
- The employment of work force without declaration to the authorities.
- The illegal loan of work force.
- The illegal addition of employments.
- The employment of illegal foreigner (without work permit).
- The false declaration (of unemployment) to received subsides.
Warning! In case of outsourcing agreements, the company subcontracting has the responsibility to insure that the subcontractor company has declared its employees. Otherwise the subcontracting company can be considered an accomplice of the illegal employment.
What are the penalties?
The penalty for illegal employment is of 3 years of imprisonment and a 45 000€ fine for an individual. The fine is increased to 225 000€ if the offender is a company.
The penalty is increase to 5 years of imprisonment and a 75 000€ fine in case of illegal employment of an underage.
The penalty for the illegal loan of work force is of 2 years of imprisonment and a 30 000€ fine for an individual. The fine is increased to 150 000€ if the offender is a company.
The penalty for the employment of illegal foreigners is of 5 years of imprisonment and a fine of 15 000€ per foreigner. If the offender is a company, the imprisonment applies to the CEO and the fine is increase to 75 000€ per foreigner.
Some penalties can be added:
- The offender can be banned of some professional activities.
- The offender can be excluded of public businesses.
- The judgement can be published in the newspaper and on the official black list.
- Forfeiture of civic, civil and family.
Administrative penalties can be added to the penal ones. They are the following:
- Cancellation of all subsides and public financial helps.
- Reimbursement of all subsides and public financial helps already received.
- Administrative closure.
Find out more on the hiring process in our database accessible on our site for registered members.
Every one agree that the French labour code is old, complex and unpractical. With this idea in mind, the French government requested a study of the changes to be brought to the code.
This study is the Combrexelle report. The government received it in September 2015.
Based on that report a planning for the update of the labour code has been set. The update of the code should take 2 years and is planned for the 1st semester 2018.
However, part of the code related to the working hours, the rests and the leaves should be updated by a law proposed to the legislator in 2016.
The content of the law is yet unknown. But some example of the modifications has been provided:
- The employer should have the possibility to increase the working hours in case of an increase in the activity.
- For specific project the employee should be allow to work more than the maximum legal working hours.
The changes made to the labour code should have the purposes of:
- Increasing the feasibility of collective agreements.
- To reduce the number of professional branches (from over 700 to 100).
- To make the collective bargaining accessible to small companies.
The FACT (Fonds pour l’amélioration des conditions de travail) can provide subsidies to companies looking to improve the work conditions of their employees.
Only companies of less than 300 employees can benefit from this help. The subsidy is provided by project. The employee’s representative must be informed of the project.
The subsidies cannot exceed 80% of the total cost of the project.
FPExpert‘s database has been updated.
It now includes all the following:
On the 30th of October 2015, the social partners agreed on the retirement system update.
This agreement includes an increase of the AGFF contribution for the executive officers.
This contribution is of 2,00% of the gross salary up to 1 social security sealing. And of 2,20% of the gross salary from 1 to 4 social security sealing. There is no contribution on the gross salary exceeding 4 social security sealing.
It is expected that on the 1st of January 2016 the gross salary from 4 to 8 social security sealing will also be subject to the AGFF contribution at a rate of 2,20%.
This agreement also includes the merge of the retirement system (ARRCO and AGIRC) as of January 2019.
This agreement is yet to be signed.
The split of the AGFF contribution is: 40% employee / 60% employer.
The annual social security sealing for 2015 is of 38 040€ (3 170€ per month)
Find out more on the social contributions in our database accessible on our site for registered members.
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In this specific case, and employee has had successive short term employment contracts.
When the final contract ended, the employee asked the judge to have the contracts reclassified as one undefinite term contract.
The judge agreed. He then condemn the company to the pay the employee:
- 2 indemnities for dismissal without just cause.
- 1 notice period indemnity.
The cassation court disagreed with the judge.
The employee could only have claimed:
- One indemnity for reclassification. Which cannot be inferior to one-month salary.
- One indemnity for dismissal without cause.
The judge of the court of appeal has been too generous and the judge of the cassation court has cancelled the judgment.
Without proper cause successive short term employment contracts can be reclassified as one indefinite term contract.
In case this the company must pay the termination indemnity as if the short term contract has been an indefinite one. And the employee is untitled to an indemnity for dismissal without just cause as the process for termination of an indefinite term contract has not been completed.
Since January 2014, every employee has a personal account for prevention of arduousness.
When an employee work under harsh conditions, he acquires point on his personal account for prevention of arduousness.
Those points can be used for:
- Professional training.
- Reduction of working time.
- Early retirement.
This personal account for prevention of arduousness bring the following obligation to the employer:
- The employer must do a yearly evaluation to the exposure to harsh conditions.
- The employer must also establish a written register of the collective data related to the exposure of harsh conditions.
- The employer must have a process to diminish exposure to harsh conditions.
- Finally, the employer must declare the harsh conditions to which each employee have been exposed.