Newsletter No. 92 – August 2016

As from October 1^st, 2016, declarations of secondment will have to be transmitted electronically. The same will apply as from January 1^st, 2017 to secondment certificates of travelling employees seconded by companies of ground transportation. As part of these new obligations, the decree authorizes the Labour Ministry to implement a treatment of the personal data contained in the teletransmitted declarations and certificates (D. n°2016-1044 of 29 July 2016, Official Journal of 31^st July).

As from August 1^st, 2016, the procedure with mandatory representation is applicable to appeals made in labour disputes. A circular of the Minister of Justice indicates that this rule does not imply that lawyers’ intervention will be restricted to the jurisdiction where they are located. This exception is explained by the fact that “the appeal in labour disputes is not subject to the exclusive assistance and representation by lawyers”, since trade union defensors are also entitled to represent the parties before the courts of appeal. The Minister concludes that “representation before the courts of appeal ruling on labour disputes remains open to any lawyer as from next August 1^st […]” (Circ. of the Ministry of Justice of 27 July 2016).

Upon request by several senators and deputies on the validity of Articles 27 and 64 of the law, the Constitutional Court validated most of the text, reversing only the following provisions:

-Article 27 relating to the provision of premises to trade unions by territorial collectivities and their grouping: partial reversing because of the retroactive effect of these provisions;

-Article 64 relating to the creation, in networks of operators of at least 300 employees in France, bound by a franchise agreement, of a social dialogue framework common to the network : partial reversal with respect to the operating expenses, which were only borne by the franchisors ;

-Article 39 : reversal of paragraph III amending the rules of use of resources of the joint fund for securization of career paths ;

-Article 62 : reversed for making it possible for the employer after 31 December 2016 to ensure by a unilateral decision additional healthcare of some employees through the payment of an amount aimed at covering part of the contributions to an individual contract ;

-Article 65 enabling certain companies of less than 50 employees to deduct from their taxable income an amount corresponding to the indemnities likely to be later due to their employees for unjustified dismissal (CC, 4 August 2016, n°2016-736).

This law, which significantly amends the Labour Code, revolves around the six following titles :

I. Refound employment law and give more strength to collective bargaining

• Reinforcement of the fight against discrimination, harassment and sexist acts ;
• New architecture of the rules applicable to working time and leave.

II. Enhance a culture of dialogue and negotiation

• More flexible rules of negotiation and reinforcement of negotiation loyalty;
• Reinforcement of legitimacy of collective bargaining agreements ;
• Reinforcement of the parties to social dialogue.

III. Securize career paths and build the basis for a new social model at digital age

• Setting up of the personal activity account;
• Adaptation of employment law to digital age.

IV. Promote employment

• Improvement of access to law for companies and promotion of employment;
• Development of apprenticeship as a route to success and reinforcement of vocational training ;
• Protection of employment.

V. Modernize occupational medecine

VI. Reinforce the fight against illegal secondment

A certain number of provisions are not in force yet, since no less than 134 decrees are expected for implementation of the law (L. n°2016-1088 of 8 August 2016, Official Journal of 9 August).

 

We will soon publish a special issue dedicated to the Job Act.

The first decree implementing the Job Act, this text determines the conditions for the allocation of this incentive designed for individuals aged less than 28 who are searching for a first job, after being graduated with a professional diploma for less than 4 months upon their request. This text also sets the list of diplomas concerned (D. n°2016-1089 of 8 August 2016, Official Journal of 9 August).

Ruling on a high-priority question of constitutionality (« QPC »), the Constitutional Court validated the provisions of former Article L. 6323-17 of the Labour Code, pursuant to which “ in the event of a dismissal non subsequent to a wilful misconduct, and if the employee so requests prior to the end of the notice period, the amount corresponding to the balance of the number of hours accrued as part of the individual training entitlement and which have not been used […] enables to fund all or part of a training […] action.” According to the Constitutional Court, such provisions are not in breach of the principles of equality before the law and equal access to vocational training. Moreover, the judges indicate that the loss of the vocational training entitlement in the event of a wilful misconduct does not directly result from the aforementioned provisions, but from the fact that the employee dismissed on this ground is deprived of notice period (CC, 29 July 2016, n°2016-558/559 QPC).