Challenging a Collective Bargaining Agreement in France: An Employer’s Guide to the Risks

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

Identifying Non-Compliance with the Collective Bargaining Agreement

The Most Common Forms of Breach

An employer’s failure to comply with a collective bargaining agreement can take many forms. It may involve non-payment of a contractual bonus provided for by the agreement, failure to observe the classification grids, application of the wrong collective bargaining agreement, refusal to grant additional days of leave provided for in the agreement, or failure to respect the minimum wages set by the agreement.

It is essential to distinguish between two situations: one where the employer applies the wrong collective bargaining agreement, and one where it 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 Bargaining Agreement

Before taking any action, the applicable collective bargaining agreement must be established. It is determined by the employer’s main activity, in accordance with Article L.2261-2 of the French Labour Code. The IDCC code (Identifiant De la Convention Collective — the collective bargaining agreement identifier) must appear on the employee’s payslip. In case of doubt, the Légifrance database may be consulted or the labour inspectorate (inspection du travail) may be contacted.

Proceedings Before the Labour Court: The Main Avenue for Employees

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

The Labour Court (Conseil de prud’hommes, CPH) is the court with natural jurisdiction to resolve individual disputes arising from the application of a collective bargaining agreement between an employee and an employer. This jurisdiction derives from Article L.1411-1 of the French Labour Code, which entrusts the CPH with the settlement of individual disputes arising in connection with the employment contract.

An employee may bring proceedings before the CPH to obtain the application of the agreement provisions that are favourable to them: back pay, reclassification, payment of bonuses, compliance with the disciplinary procedure set by the agreement, and so on. Proceedings are commenced by an application filed with the registry of the competent court — 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 CPH

Labour court proceedings begin with a conciliation stage before the conciliation and case-management board (bureau de conciliation et d’orientation, BCO). If conciliation fails, the case is referred to the judgment board (bureau de jugement). The employee may be assisted or represented by a lawyer, a union representative (défenseur syndical), or an employee from the same industry sector.

It is advisable to build a solid file including payslips, the employment contract, the applicable collective bargaining agreement, and any document capable of demonstrating the employer’s breach. The assistance of a lawyer specialising in employment law, such as those at DAIRIA Avocats, is strongly recommended to optimise the chances of success.

Trade Union Action: Substitution for the Employee

The Unions’ Right to Act

Representative trade unions have their own right of action in matters relating to collective bargaining 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 establish 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 and on behalf of the employee, provided the employee has been informed and has not objected. The employee nevertheless retains the right to intervene in the proceedings brought by the union and to terminate them at any time.

Action for Compensation for Harm 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 bargaining 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 systematic non-compliance with a collective bargaining agreement necessarily harms the collective interest of the profession (Cass. soc., 12 February 2013, no. 11-27.689).

Action to Annul a Collective Agreement Before the Judicial Court

Grounds for the Action to Annul

Where the challenge concerns not the application of an agreement but the very validity of a collective agreement, the Judicial Court (Tribunal judiciaire, TJ) has jurisdiction. An action to annul may be based on several grounds: defect of consent during negotiation, 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 Order no. 2017-1385 of 22 September 2017, strictly limits the time frame for bringing an action to annul. Any action to annul a collective agreement or accord must be brought within a two-month period from the notification of the agreement to the organisations with a union branch in the company, or from the publication of the agreement in the national database.

Effects of Annulment

Annulment of a collective agreement may be total or partial, depending on the seriousness of the defect found and on 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 adopted by the 2017 Macron orders.

Civil Penalties for Non-Compliance

Back Pay

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

The limitation period applicable to back pay 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 relate to sums due for the three years preceding the referral to the CPH or, where the contract has been terminated, to 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 non-compliance with the collective bargaining agreement. This harm may be material (loss of income, loss of pension rights) or non-material (harm to the employee’s dignity, stress linked to financial insecurity).

However, since the Cour de cassation ruling of 13 April 2016 (no. 14-28.293), the employee must establish harm distinct from mere late payment in order to obtain damages in addition to back pay. The mere finding of a breach is no longer sufficient to give rise to a right to additional compensation.

Criminal Penalties

The Offence of Non-Compliance with a Collective Bargaining Agreement

Non-compliance with an extended collective bargaining agreement (convention collective étendue) is a criminal offence. Article R.2263-3 of the French Labour Code provides for a class 4 fine (up to EUR 750 for an individual) per offence established. This fine is applied as many times as there are employees affected by the offence.

The criminal penalty mainly concerns agreements and accords extended by ministerial order. The labour inspectorate has jurisdiction to establish offences by official report (procès-verbal) and to transmit the file to the public prosecutor.

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

In the event of repeat offending or multiple breaches, the penalties may be significantly increased. The employer may also be ordered to post the judgment on the company premises — a particularly deterrent measure.

Practical Steps to Challenge Non-Compliance

Step 1: Gathering Evidence

Before any action, it is essential to gather all evidence: payslips, employment contract, the text of the applicable collective bargaining 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: Attempting 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, setting out precisely the breaches found and the agreement provisions disregarded, may be sufficient to obtain a correction. Contractual mediation or the participatory procedure (procédure participative) are also options to consider.

Step 3: Referring 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 chances of success, quantify the claims, and provide representation before the court.

Step 4: Involving Employee Representatives

Employee representatives, in particular members of the Social and Economic Committee (Comité Social et Économique, CSE), have a right of alert where individuals’ rights are infringed. They may also refer matters to the labour inspectorate and assist employees in their procedures. This complementary avenue should not be overlooked.

FAQ: Challenging the Application of a Collective Bargaining Agreement

What is the time limit to act in the event of non-compliance with the collective bargaining agreement?

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

Can an employee act alone before the Labour Court?

Yes, an employee may refer a matter to the CPH alone without a lawyer. However, given the complexity of questions relating to collective bargaining agreements, the assistance of a specialist lawyer such as those at DAIRIA Avocats is strongly recommended to maximise the chances of success.

A union may bring the substitution action provided for by 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 notification.

What penalties apply to an employer that does not comply with the collective bargaining agreement?

The employer is exposed to civil penalties (increased back pay, damages) and criminal penalties (a class 4 fine per affected employee, i.e. up to EUR 750 per offence). In the event of repeat offending, the penalties are increased.

Can the application of a collective bargaining 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 bargaining agreement during the performance of the employment contract, within the applicable limitation periods.

Can the labour inspectorate intervene?

Yes, the labour inspectorate has jurisdiction to monitor the application of extended collective agreements and accords. It may draw up an official report establishing an offence and issue a formal notice requiring the employer to comply with the agreement provisions.

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

Challenging a Collective Bargaining Agreement in France: An Employer's Guide to the Risks