Modification of working conditions in France
| Autor | Konstantina Chatzilaou - Ylias Ferkane - Nathalie Mihman - Magali Roussel |
| Páginas | 12-21 |
Ver nota 1
Page 12
Since the 1990s, French labor law has established a primary distinction between "modification of contract" and "change in working conditions". As a result, either the employer wants to change an element from the contractual sphere, and in that case, it can only be done by agreement, or the employer wants to change working conditions, and he may, exceptions aside, do it unilaterally.
Traditionally, variation of contract is strongly connected with dismissal law. Recently, with collective agreements concerning mobility and the agreements preventing redundancy that have been introduced by the law of June 14th 2013, there has been an attempt to facilitate restructuring by changing rules concerning variation of contract. The purpose of "collective agreements of internal mobility" is to plan geographical and functional mobility at a collective level when there is no attempt at reducing the number of employees2. The purpose of collective agreements which preserve employments is to guarantee a preservation of employment in return of an agreement on a variation of wages or/and working hours when the company faces serious economic difficulties3.
Both types of agreement promote the development of a regulation providing for negotiated restructuring4. This new regulation has been in use for too short a period of time for observers to be able to gauge of its efficiency, but it appears that very few employers have concluded such agreements so far5.
Page 13
It depends on whether the variation constitutes a modification of contract or a change in working conditions.
General rules
For the most part, modifications in working conditions are ruled by case law. Since 1996, French Courts distinguish between what belongs to the contractual sphere and what belongs to the authority of the employer.6Thus, the difference is made between modifications of contract and changes in working conditions. Any modification of a contract requires the express assent of both parties7, whereas changes in working conditions are a right of the employer who may unilaterally use his power.
The contract’s content has been objectively defined by the High Court. Beside the existence of express terms in the contract which may increase the spectrum of the employer’s power, some types of working conditions always come within the contractual sphere. The "four pillars" of a contract of employment are: qualifications (functions), working hours8, place of work9and wages10. If the employer wishes to change one of these, regardless of the importance of the modification, he must get the employee’s express consent.11If the employee should refuse, the employer may pursue the execution of the contract under previous conditions or terminate the contract. If the employer should decide to go through with dismissal, he must prove that the modification rest upon a disciplinary reason or a valid economic reason. If the change should concern working conditions and not the contract per se, the employer may decide upon a disciplinary measure in case of refusal on the part of the employee.
A specific procedure has been set up when a modification of contract is due to economic reasons. Employers must send a letter to employees offering the
Page 14
modification12. If a period of a month should elapse before the employee’s answer, then his/her silence shall be considered an acceptance of the modification.
Since 2013, there has been an adjustment concerning the consequences of a contract modification refusal in case of collective agreement, either regarding employment mobility within the company, or a modification in order to avoid redundancy. If such an agreement should have been concluded in the company, employees retain a right to refuse the modification, but if the employer wishes to go through with redundancy, the said redundancy shall always be made individual13. That is to say, procedures established in cases of mass redundancy shall never apply. Moreover it could change the way judges regard the fairness of a dismissal.
Modification of the worker’s functions
As one of the contract’s pillars, the employer may not unilaterally modify the employee’s qualifications. Increasing or decreasing an employee’s position, even if it should constitute a disciplinary measure or if it should be required by the employee’s health, requires the employee’s express assent. However:
Firstly, Courts distinguish between real modifications of the contract and simple changes in the tasks of the employee. Employers may modify the employee’s tasks if it does not impact on the employee’s qualification and responsibility.14Likewise, changing incidental tasks or changing for similar tasks15does not constitute a modification of contract. However, if the new tasks are extremely different from usual tasks, it will generally be considered a modification of the contract.16
Secondly, an exception is made in case of short-term changes. Thus, it has been judged that employers may unilaterally modify the qualification or responsibility when the modifications are exceptional and temporary.17However, the modification must not imply a wage modification and the employee must be notified that it is a temporary modification.
Page 15
Thirdly, if a collective agreement of internal mobility modifies the qualifications, the latter remains in the contractual sphere, but in case of an employee’s refusal followed by a dismissal, it will always be a case of "individual dismissal for economic reasons".
It depends on whether the variation constitutes a modification of...
Para continuar leyendo
Solicita tu prueba