Challenges to Collective Bargaining Agreements in France: An Employer’s Guide

Applying the relevant collective bargaining agreement (convention collective) is a fundamental obligation for employers in France. Where an employer fails to comply with the applicable collective provisions, employees and trade unions have several avenues of recourse. What actions can be brought? Before which courts? With what consequences? DAIRIA Law provides a complete overview of the available means of challenge, so that international employers can anticipate and manage these risks.

Identifying Non-Compliance with the Collective Agreement

The Most Common Forms of Breach

Non-compliance with a collective agreement by an employer can take many forms. It may involve the non-payment of a contractual bonus provided by the agreement, failure to observe classification grids, application of the wrong collective agreement, refusal to grant additional days of leave provided for under the agreement, or failure to comply with the contractual minimum wages.

It is essential to distinguish between two situations: one where the employer applies the wrong collective agreement, and one where the employer applies the correct agreement but disregards certain of its provisions. In both cases, the employee has recourse, but the legal grounds and the courts with jurisdiction may differ.

Verifying the Applicable Collective Agreement

Before taking any action, it is necessary to confirm which collective agreement actually applies to the company. This is determined by the employer’s principal activity, in accordance with Article L.2261-2 of the French Labour Code. The IDCC code (Identifiant De la Convention Collective, i.e. the collective agreement identification code) must appear on the employee’s payslip. In case of doubt, it is possible to consult the Légifrance database or to seek clarification from the labour inspectorate (inspection du travail).

The Labour Court Action: The Main Avenue for the Employee

Jurisdiction of the Labour Court (Conseil de prud’hommes)

The Conseil de prud’hommes (labour court) is the court with natural jurisdiction to rule on individual disputes arising from the application of a collective agreement between an employee and their employer. This jurisdiction derives from Article L.1411-1 of the French Labour Code, which entrusts the labour court with settling individual disputes arising out of the employment contract.

The employee may bring a claim before the labour court to obtain the application of the collective provisions that are favourable to them: back pay, reclassification, payment of bonuses, compliance with the contractual disciplinary procedure, and so on. A claim is filed by way of an application lodged with the registry of the competent court, being either the court of the place of work, the court of the employee’s home if they work from home, or the court of the place where the contract was concluded.

Procedure Before the Labour Court

Labour court proceedings begin with a conciliation phase before the conciliation and orientation panel (bureau de conciliation et d’orientation, BCO). If conciliation fails, the matter is referred to the judgment panel (bureau de jugement). The employee may be assisted or represented by a lawyer, a trade union defender (défenseur syndical) or an employee from the same sector of activity.

From an employer’s standpoint, it is important to be aware that claimants are advised to build a solid file including payslips, the employment contract, the applicable collective agreement, and any document capable of demonstrating the employer’s breach. Employers should therefore ensure that their own documentation and compliance are equally robust. The assistance of a lawyer specialising in employment law, such as those at DAIRIA Law, is strongly recommended to manage such disputes effectively.

Trade Union Action: Substitution for the Employee

The Unions’ Right to Act

Representative trade unions have their own right of action in matters concerning collective agreements. Article L.2262-9 of the French Labour Code provides that unions bound by a collective agreement or accord may bring all actions arising from that agreement or accord on behalf of their members, without having to demonstrate a mandate from the person concerned.

This mechanism, known as the action de substitution (substitution action), is a powerful tool. The union may act in the name of and on behalf of the employee, provided that the employee has been informed and has not objected. The employee nonetheless retains the right to intervene in the proceedings brought by the union and to bring them to an end at any time.

Action for Damage to the Collective Interest of the Profession

Beyond the substitution action, unions may act in their own name to obtain compensation for the harm caused to the collective interest of the profession by the breach of the collective agreement (Article L.2262-11 of the French Labour Code). This action is distinct from that brought on behalf of individual employees and may result in an award of damages to the union.

Case law broadly recognises this right of action. The French Supreme Court (Cour de cassation) has held that the systematic disregard of a collective agreement necessarily harms the collective interest of the profession (Cass. soc., 12 February 2013, No. 11-27.689).

Action to Annul a Collective Accord Before the Judicial Court

Grounds for the Annulment Action

Where the challenge concerns not the application of an agreement but the very validity of a collective accord, the Judicial Court (Tribunal judiciaire, TJ) has jurisdiction. The annulment action may be based on several grounds: a defect of consent during negotiations, failure to meet the required majority conditions, breach of public policy provisions, or discrimination.

Article L.2262-14 of the French Labour Code, introduced by Ordinance No. 2017-1385 of 22 September 2017, strictly regulates the time limits for bringing an annulment action. Any action to annul a collective agreement or accord must be brought within a period of two months from the notification of the accord to the organisations having a union section within the company, or from the publication of the accord in the national database.

Effects of Annulment

The annulment of a collective accord may be total or partial, depending on the seriousness of the defect identified and whether the clauses are severable. The court may decide to modulate the effects of its decision over time so as not to create disproportionate legal uncertainty. This possibility has been established by the case law of the Cour de cassation and taken up by the Macron ordinances of 2017.

Civil Sanctions in the Event of Non-Compliance

Back Pay

The most common sanction for non-compliance with a collective agreement is an order requiring the employer to pay back wages. Where the employer has failed to observe the contractual minimums, mandatory bonuses, or classification grids, the employee may obtain payment of the sums due, together with the corresponding paid leave.

The limitation period applicable to back-pay claims is three years, in accordance with Article L.3245-1 of the French Labour Code. This period runs from the day on which the person bringing the action knew or should have known the facts enabling them to bring it. The claim may cover sums due for the last three years from the referral to the labour court, or, in the event of termination of the contract, for the three years preceding termination.

Damages

In addition to back pay, the employee may seek an award of damages to compensate for the harm suffered as a result of the non-compliance with the collective agreement. This harm may be material (loss of income, loss of pension rights) or moral (harm to the employee’s dignity, stress related to financial insecurity).

However, since the Cour de cassation ruling of 13 April 2016 (No. 14-28.293), the employee must demonstrate harm distinct from the mere delay in payment in order to obtain damages in addition to back pay. The mere finding of a breach no longer gives rise to a right to additional compensation — a point that works in employers’ favour.

Criminal Sanctions

The Offence of Non-Compliance with the Collective Agreement

Non-compliance with an extended collective agreement (convention collective étendue) is criminally sanctioned. Article R.2263-3 of the French Labour Code provides for a 4th-class fine (a maximum of 750 euros for an individual) per offence recorded. This fine is applied as many times as there are employees affected by the offence.

The criminal sanction primarily concerns agreements and accords extended by ministerial order. The labour inspectorate has authority to record offences by official report (procès-verbal) and to forward the file to the public prosecutor.

Beyond the specific fine, non-compliance with certain contractual provisions may constitute other criminal offences. For example, failure to observe the contractual provisions on working time may amount to the offence of undeclared work (travail dissimulé). Similarly, failure to pay the contractual minimum wage may fall under offences relating to the payment of wages.

In the event of repeat offences or multiple breaches, sanctions may be considerably increased. The employer may also be ordered to display the judgment on the company’s premises, a particularly deterrent measure.

Practical Steps to Bring a Challenge

Step 1: Gather the Evidence

Before taking any action, it is essential to gather all the evidence: payslips, the employment contract, the text of the applicable collective agreement, correspondence with the employer, statements from colleagues, and so on. The burden of proof is shared in labour court proceedings, but it is for the employee to provide factual evidence giving rise to a presumption of the breach.

Step 2: Attempt an Amicable Settlement

Before referring a matter to a court, it is often advisable to attempt an amicable settlement. A registered letter with acknowledgement of receipt addressed to the employer, precisely setting out the breaches identified and the contractual provisions disregarded, may be sufficient to obtain regularisation. Contractual mediation or the participatory procedure (procédure participative) are also options to consider — and from an employer’s perspective, engaging early can help avoid litigation and reputational risk.

Step 3: Refer the Matter to the Competent Court

In the absence of an amicable settlement, the employee must refer the matter to the labour court within the applicable limitation periods. It is strongly recommended to be assisted by a specialist lawyer who can assess the prospects of success, quantify the claims and provide representation before the court.

Step 4: Involve the Employee Representatives

Employee representatives, in particular the members of the Social and Economic Committee (Comité Social et Économique, CSE), have a right of alert (droit d’alerte) in the event of an infringement of individuals’ rights. They may also refer matters to the labour inspectorate and support employees in their steps. This complementary avenue should not be overlooked.

FAQ: Challenging the Application of a Collective Agreement

What is the time limit for acting in the event of non-compliance with the collective agreement?

The limitation period for back-pay claims is 3 years (Article L.3245-1 of the French Labour Code). For an action to annul a collective accord, the period is 2 months from the notification or publication (Article L.2262-14). For other actions (damages, enforcement of non-wage obligations), the ordinary limitation period of 2 years applies.

Can an employee act alone before the labour court?

Yes, an employee may refer a matter to the labour court alone, without a lawyer. However, given the complexity of issues relating to collective agreements, the assistance of a specialist lawyer such as those at DAIRIA Law is strongly recommended to maximise the prospects of success.

A union may bring the substitution action provided for in Article L.2262-9 of the French Labour Code without a mandate from the employee, but it must inform the employee. The employee may object to this action within 15 days of the notification.

What are the sanctions for an employer that does not comply with the collective agreement?

The employer is exposed to civil sanctions (increased back pay, damages) and criminal sanctions (a 4th-class fine per employee affected, i.e. a maximum of 750 euros per offence). In the event of a repeat offence, the sanctions are aggravated.

Can the application of a collective agreement be challenged after a dismissal?

Yes, a dismissed employee retains the right to refer a matter to the labour court to obtain back pay and damages relating to non-compliance with the collective agreement during the performance of the employment contract, within the applicable limitation periods.

Can the labour inspectorate intervene?

Yes, the labour inspectorate has authority to check compliance with extended collective agreements and accords. It may draw up an official report recording an offence and issue a formal notice requiring the employer to comply with the contractual provisions.

This article is written by the employment law experts at DAIRIA Law. For any questions relating to the application of your collective agreement, please do not hesitate to contact us.

Challenges to Collective Bargaining Agreements in France: An Employer's Guide