Working time is a hot issue in French employment law. French law restricts working time, usually on the basis of the number of hours worked per week, this being the famous, (or notorious!) French 35 hour week. Within strict limits more hours can be worked but they will result in overtime also being payable. And, as the actual terms of employment are reviewed on a weekly basis they are easily monitored and health and safety requirements enforced.

However, recognising that this system is hardly appropriate for management level employees, under certain circumstances the weekly hourly quota can be replaced by a calculation based on the number of days worked during the year: this is known as the “forfait jours” (FJ) system whereby the employee has an annual quota of days worked during the year, which cannot exceed 218 or, by specific agreement with the concerned employee, 235 days per year).

As a pre-condition the FJ must be sanctioned by provisions in a national wide or firm specific collective bargaining agreement (“CBA”), so if there is no applicable CBA the FJ system cannot be applied (and firm specific agreements are only available for businesses of a certain size).  The CBA determines which categories of employees are eligible for the FJ system, during what period(s) of the year and its principal characteristics. In addition, the FJ must be provided for by the employment contract (or an addendum thereto).

But the fact that the FJ system has been incorporated into a CBA does not means that it is beyond criticism or indeed immune from sanction by the courts. This has just been illustrated by a decision of April 24, 2013 of the French Supreme Court which went so far as to invalidate a FJ system based solely on the mechanism incorporated into a major CBA, that applied by a largenumber of white-collar technical and engineering consulting firms (“Bureaux d’études techniques, cabinet d’ingénieurs conseils” – SYNTEC).

The case originated when a management level employee, in theory subject to the FJ regime, made a claim for back-pay. When examining his case the Supreme Court  (which can only decide on issues of law, not of fact alone) decided to review the terms of the SYNTEC CBA, and in particular whether the provisions put in place to monitor the FJ system were sufficiently protective of employees’ interests.

The conclusion of the Social Division of the Supreme Court was that indeed the terms of the SYNTEC CBA, insofar as they applied to the FJ system did not, in and by themselves alone, provide the necessary guarantees to ensure that the actual work schedule of the employee was reasonable and that accordingly his health and safety were adequately protected.

The effect of this was to invalidate the FJ regime for this employee, opening up the possibility that he may be able to claim substantial sums, calculated not on the basis of FJ but on that of normal worked overtime.

So, as the employer found out to his cost, reliance on the provisions of the applicable CBA may not provide a safe harbour.

This latest decision from the Labour Section of the French Supreme Court does not come as a surprise but reflects the Court’s sensitivity to health and safety issues. In two other recent decisions (June 29, 2011, n° 09-71107 and September 26,  2012 n°11-14540) the Court specifically reviewed the conformity of the applicable CBA as far as the protection provided to employees eligible for the FJ system was concerned. And in a decision of January 31, 2012 the Court indirectly found that the FJ provisions in the CBA applicable to the Chemical Industry were inadequate. In this case the Court based its decision on the finding that the protection of the employee’s health is a constitutional right.

So the Court’s position is clear: if the provisions of a CBA do not adequately protect the health and safety of an employee subject to the FJ system they will be set aside, thereby opening up the possibility for managerial level employees, on the face of it subject to a FJ system of remuneration, to claim back pay on the basis of overtime worked instead.

The lessons of these decisions are clear. When applying existing or introducing new FJ regimes into their working time regulations, employers should not rely only upon the control mechanisms contained in the CBAs applicable to their industries. In light of the highly protective position adopted by the French Supreme court it may be necessary to draft additional regulations which ensure that the actual application of the FJ system in the company in question is adequately monitored and enforced. Failure to do so may result in management level employees claiming substantial amounts of back pay calculated on the basis of hourly overtime. But it should be noted that such firm specific regulations are only available for companies of a certain size with formal employee representation. In some cases, the employer may be forced to review entirely the application of the FJ system.

Jérôme Scapoliat