PAID LEAVE: A leave from work due to illness of non-occupational origin does not prevent the acquisition of paid leave.
Article 7 § 1 of European Directive No. 2003/88/EC guarantees all employees a minimum of four weeks of annual paid leave. While this directive should be transposed into national law, a French employee does not benefit, unless there are more favorable conventional provisions, from paid leave during a period of leave from work for illness of non-occupational origin (Art. L. 3141- 5 of the Labor Code). In a decision dated 17 July 2023, the Administrative Court of Appeal of Versailles states as a reminder that “with regard to workers on duly prescribed sick leave, the right to paid annual leave conferred by this directive on all workers cannot be subordinated by a Member State to the obligation to have actually worked during the reference period established by said State” (CAA Versailles, 17 July 2023, No. 22VE00442).
PENSION REFORM: Clarifications relating to phased retirement, the pension resulting from the full combination of employment and retirement and the social regime for individual mutually agreed termination.
Decrees No. 2023-751 and No. 2023-753 of 10 August 2023 facilitate access to phased retirement, which allows an employee to liquidate part of their retirement before the legal retirement age and move to part-time work. In order to facilitate its use, these decrees have specified the methods of execution of Article 26 of the Amending Social Security Financing Law No. 2023-760 of 14 April 2023, which extended the field of its beneficiaries, limited the possibilities of the employer to refuse it and allowed the employee to request an exemption from the minimum duration of part-time work. The first decree states as a reminder that the employee must have validated at least 150 quarters to access it. The second specifies that phased retirement can be implemented only two years before the legal retirement age of the employee, an age which will be extended following the gradual postponement of the legal retirement age. Moreover, pursuant to these two decrees, the income from the combination of employment and retirement create pension rights. This income being subject to contributions, the employee shall be entitled, at the end of the employment-retirement combination period, to obtain an additional pension, which shall be calculated and paid under the conditions applicable to the old-age pension of the scheme to which the employee belongs, as provided by Decree No. 2023-751. Likewise, according to Decree No. 2023-753, this pension shall benefit from the full rate, and no supplement, increase or accessory can be attached to it. This pension will be subject to an annual ceiling equivalent to 5% of the Annual Social Security Ceiling. Finally, Decree No. 2023-760 of 10 August 2023 establishing Article 4 of the LFRSS No. 2023-270 of 14 April 2023 aims to limit individual mutually agreed terminations of employees at the end of their career. The regime which made the mutually agreed termination of an employee eligible to draw up their full-rate pension attractive from a tax perspective is therefore abolished. The decree sets up a unified regime for all individual mutually agreed terminations and retirements, by creating a single employer contribution of 30% on the fraction of the compensation paid to the employee which is exempt from contributions, as long as it does not exceed ten PASS (Decree No. 2023-751, Decree No. 2023-753 and Decree No. 2023-760 of 10 August 2023, Official Journal of 11 August, LFRSS No. 2023-270 of 14 April 2023, Official Journal of 14 April).
PAYROLLING: A payrolling contract can be converted into a permanent contract within 5 years of its end, even if the employee did not have a permanent job.
An employee had been hired by a company under a payrolling contract. At the end of this contract, the employee requested its conversion into a permanent contract. In a decision of 7 April 2023, the Court of Appeal of Grenoble granted his request: “if a payrolling contract cannot be converted into a permanent contract in the absence of a specific provision providing for it on the grounds that the concerned employee would have a permanent position within the client company (…), said employee however has an action aimed at having it recognized that through a service for a client company within the framework of payrolling, the conditions for the existence of an employment contract were in reality met given the existence of a subordination relationship with this company (…), such an action being subject to the limitation period under common law of five years, the starting point of which is the date of the end of the service” (CA Grenoble, 7 April 2023, No. 20/03485).
DELEGATION OF AUTHORITY: The new National Collective Bargaining Agreement for the metallurgy industry imposes a “preliminary reflection” before the implementation of a delegation of authority.
Coming into force on 1 January 2024, Article 167.1 of the new CCN for the metallurgy industry provides that any delegation of authority shall be preceded by “a preliminary reflection within the company on the nature and extent of the powers and responsibilities that may be subject to it, as well as on the appropriate hierarchical level of delegation“. Above all, the company shall ensure “that the delegation of authority coincides with the reality of the functions and powers in the company at the time the delegation is established, and over time”. The CCN specifies that the delegation must be continuous, and be made in writing. However, it does not specify either the terms of the implementation of the preliminary reflection, nor its formalism, which leads to questions about its means of control (Article 167.1 of the new CCN for the metallurgy of 7 February 2022).
OCCUPATIONAL WEAR AND TEAR: Details on the application of article 17 of the LFRSS of 14 April 2023 on the prevention of occupational wear and tear.
Decrees No. 2023-759 and No. 2023-760 of 10 August 2023 implement Article 17 of the LFRSS No. 2023-270 of 14 April 2023, by creating the investment fund for the prevention of occupational wear and tear. The aim of this is to improve the prevention of exposure to occupational ergonomic risk factors, i.e., painful postures, mechanical vibrations and the carrying of heavy loads. This prevention shall be carried out both at the company and branch levels. Furthermore, the decrees strengthen the professional prevention account (C2P), by facilitating its use, by improving existing rights, and by creating a right to professional retraining without loss of remuneration (decree No. 2023-759 and decree No. 2023-760 of 10 August 2023, Official Journal of 14 April).
PROFESSIONAL ELECTIONS: In companies with 11 to 20 employees, the employer must organize professional elections, even in the absence of a candidate.
Paragraph 5 of Article L. 2314-5 of the Labor Code provides that, in companies with 11 to 20 employees, “the employer invites trade union organizations (…) to negotiate the pre-election agreement on the condition that at least one employee has stood for election”. If this paragraph has been controversial, it is appropriate to draw the attention of employers to Cerfa No. 15248*05 verified on 8 August 2023 by the legal and administrative information department, which presents a box in which it is now necessary to indicate the date of the two rounds, to which no candidate stood for election, with a view to noting the deficiency (Cerfa No. 15248*05 « certificate of deficiency for all colleges of the Social and Economic Committee »).