Challenging the Application of a Collective Bargaining Agreement: What International Employers Need to Know

Applying the relevant collective bargaining agreement (convention collective) is a fundamental obligation for employers operating in France. When an employer fails to comply with the applicable contractual provisions, employees and trade unions have several avenues of recourse. What actions can be brought? Before which courts? With what consequences? The firm DAIRIA Avocats provides a complete overview of the challenges an employer may face — so you can anticipate and manage these risks.

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 the non-payment of a contractual bonus, failure to observe classification grids, application of the wrong collective agreement, refusal to grant additional days of leave provided for under the agreement, or non-compliance with the contractual minimum wage levels.

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 basis and the courts with jurisdiction may differ.

Verifying the Applicable Collective Bargaining Agreement

Before taking any action, it is necessary to confirm which collective agreement genuinely 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 — the collective 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.

Labour Court Proceedings: The Employee’s Main Avenue

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

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

The employee may bring proceedings before the CPH to obtain application of the contractual provisions that are favourable to them: salary arrears, reclassification, payment of bonuses, compliance with the contractual disciplinary procedure, and so on. Proceedings are commenced by an application filed with the registry of the competent court, which is either the court of the place of work, the court of the employee’s domicile if they work from home, or the court of the place where the contract was concluded.

Procedure Before the CPH

Proceedings before the Labour Court 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 union defender (défenseur syndical), or an employee from the same industry sector.

Employees 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. From the employer’s standpoint, this underlines the importance of maintaining accurate documentation and being able to justify your classification and pay decisions. The assistance of a lawyer specialising in labour law, such as those at DAIRIA Avocats, is strongly recommended.

Union Action: Substitution for the Employee

The Right of Trade Unions to Take Action

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

This mechanism, known as 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 nonetheless retains the right to intervene in 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 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 exercised for the benefit of individual employees and may result in the 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). Employers should therefore be aware that repeated breaches expose them not only to individual claims but also to separate union claims.

Action to Annul a Collective Agreement Before the Judicial Court

Grounds for an Annulment Action

Where the challenge relates not to the application of an agreement but to the validity of a collective agreement itself, jurisdiction lies with the Judicial Court (Tribunal judiciaire, TJ). An annulment action may be based on several grounds: defect of consent during negotiation, failure to observe the required majority conditions, breach of provisions of public policy, or discrimination.

Article L.2262-14 of the French Labour Code, introduced by Ordinance no. 2017-1385 of 22 September 2017, strictly frames 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 agreement to organisations with a union section in the company, or from the publication of the agreement in the national database.

Effects of Annulment

The annulment of a collective agreement may be total or partial, depending on the seriousness of the defect found and whether or not 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 was established by the case law of the Cour de cassation and taken up by the 2017 Macron Ordinances.

Civil Sanctions for Non-Compliance

Salary Arrears

The most frequent sanction for failure to comply with a collective agreement consists in ordering the employer to pay salary arrears. Where the employer has not observed the contractual minimum wage levels, mandatory bonuses, or classification grids, the employee may obtain payment of the sums owed, together with the related paid leave.

The limitation period applicable to salary arrears is three years, in accordance with Article L.3245-1 of the French Labour Code. This period runs from the day on which the party bringing the action knew or should have known the facts enabling them to exercise it. The claim may cover sums owed for the last three years from the date the CPH is seised, or, where the contract has been terminated, the three years preceding termination.

Damages

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

However, since the Cour de cassation ruling of 13 April 2016 (no. 14-28.293), the employee must justify a harm distinct from the mere delay in payment in order to obtain damages in addition to salary arrears. The mere finding of a breach is no longer sufficient to give rise to additional compensation — a point that works in the employer’s favour.

Criminal Sanctions

The Offence of Failing to Comply with a Collective Agreement

Failure to comply with an extended collective agreement is punishable under criminal law. Article R.2263-3 of the French Labour Code provides for a 4th-class fine (a maximum of 750 euros for a natural person) per offence recorded. This fine is applied as many times as there are employees affected by the offence.

The criminal sanction applies mainly to agreements and accords extended by ministerial order (arrêté). 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, failure to comply with certain contractual provisions may constitute other criminal offences. For example, non-compliance with the contractual provisions on working time may amount to the offence of concealed work (travail dissimulé). Likewise, non-payment of the contractual minimum wage may fall within the offences relating to the payment of wages.

In the event of repeat offences or multiple breaches, the sanctions may be considerably increased. The employer may also be ordered to post the judgment in the company’s premises — a particularly dissuasive measure. These risks make preventive compliance a priority for any employer operating in France.

Practical Steps in a Challenge

Step 1: Gathering Evidence

Before any action, it is essential to gather all evidence: payslips, employment contract, the text of the applicable collective agreement, exchanges 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 breach. For employers, this highlights the value of maintaining clear internal records to rebut such claims.

Step 2: Attempting an Amicable Settlement

Before seising 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 enough to obtain regularisation. Contractual mediation or a participatory procedure (procédure participative) are also options to consider.

Step 3: Seising the Competent Court

In the absence of an amicable settlement, the employee must seise the Labour Court within the applicable limitation periods. It is strongly recommended that both parties be supported by a specialised lawyer who can assess the prospects 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 there is an infringement of individuals’ rights. They may also refer matters to the labour inspectorate and support employees in their steps. Employers should be aware of this complementary channel.

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 agreement?

The limitation period for salary arrears 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 the notification or publication (Article L.2262-14). For other actions (damages, performance of non-salary obligations), the general limitation period of 2 years applies.

Can an employee act alone before the Labour Court?

Yes, the employee may seise the CPH alone without a lawyer. However, given the complexity of issues relating to collective agreements, the assistance of a specialised lawyer such as those at DAIRIA Avocats is strongly recommended to maximise the prospects of success — a point that applies equally to employers defending such claims.

Can a union act without the employee’s agreement?

A union may exercise 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 sanctions apply to an employer that does not comply with the collective agreement?

The employer is exposed to civil sanctions (increased salary arrears, 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 increased.

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

Yes, a dismissed employee retains the right to seise the Labour Court to obtain salary arrears and damages linked 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 monitor compliance with extended collective agreements and accords. It may draw up an official report recording an offence and issue a formal notice (mise en demeure) requiring the employer to comply with the contractual provisions.

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