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

Applying a collective bargaining agreement (convention collective) is a fundamental obligation for employers operating in France. Where an employer fails to comply with the applicable agreement provisions, employees and trade unions have several avenues of recourse. What actions can they bring? Before which courts? With what consequences? DAIRIA Avocats provides a complete overview of the challenge mechanisms available — essential knowledge for any employer seeking to manage compliance and litigation risk.

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. This may include non-payment of a contractual bonus provided by the agreement, failure to respect job classification grids, application of the wrong collective agreement, refusal to grant additional leave days provided for under the agreement, or non-compliance with the agreement’s 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 competent courts may differ.

Verifying the Applicable Collective Agreement

Before taking any action, it is necessary to determine 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 — the collective agreement identifier) must appear on the employee’s payslip. In case of doubt, the Légifrance database can be consulted or the labour inspectorate (inspection du travail) contacted.

The Labour Court Claim: The Employee’s Primary Avenue

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

The labour court (Conseil de prud’hommes, or CPH) is the court with natural jurisdiction to resolve 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 CPH with settling individual disputes arising in connection with the employment contract.

An employee may bring a claim before the CPH to obtain application of the agreement provisions that are favourable to them: back pay, reclassification, payment of bonuses, compliance with the agreement’s disciplinary procedure, and so on. The claim is filed by application (requête) lodged with the registry of the competent court — either that of the place of work, that of the employee’s home if they work from home, or that of the place where the contract was concluded.

Procedure Before the CPH

Labour court proceedings begin with a conciliation phase before the conciliation and orientation panel (bureau de conciliation et d’orientation, or BCO). If conciliation fails, the case 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.

It is advisable to build a solid file including payslips, the employment contract, the applicable collective 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 — a point employers should bear in mind when assessing their own exposure.

Union Action: Substitution for the Employee

The Right of Unions to Act

Representative trade unions have their own right of action in relation to collective agreements. Article L.2262-9 of the French Labour Code provides that unions bound by a collective agreement may bring any action arising from that agreement on behalf of their members, without having to prove a mandate from the individual 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 nonetheless retains the right to intervene in the proceedings brought by the union and to terminate them at any time.

Action for Damages 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 violation 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 damages being awarded 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 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 Annulment Action

Where the challenge concerns not the application of an agreement but the very validity of a collective agreement, the Tribunal judiciaire (Judicial Court, or TJ) has jurisdiction. An annulment action may be based on several grounds: defect of consent during negotiation, failure to comply with the required majority conditions, violation 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 limits the time to bring an annulment action. Any action to annul a collective agreement must be brought within a two-month period 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

Annulment of a collective agreement may be total or partial, depending on the seriousness of the defect found 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 case law of the Cour de cassation and incorporated into the 2017 Macron ordinances.

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 respect the agreement’s minimum rates, mandatory bonuses, or classification grids, the employee may recover the sums owed, together with the related 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 ought to have known the facts enabling them to bring it. The claim may cover sums due 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 back pay, the employee may seek 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 linked to financial precariousness).

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 is no longer sufficient to give rise to additional compensation — a development that limits employers’ exposure.

Criminal Sanctions

The Offence of Non-Compliance with the Collective Agreement

Non-compliance with an extended collective 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 a natural person) per offence found. This fine is applied as many times as there are employees affected by the offence.

The criminal sanction primarily concerns agreements 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 agreement provisions may constitute other criminal offences. For example, failure to comply with the agreement’s working-time provisions may amount to the offence of concealed employment (travail dissimulé). Similarly, non-payment of the agreement’s minimum wage may fall under offences relating to the payment of wages.

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

Practical Steps to Bring a Challenge

Step 1: Gather Evidence

Before taking any action, it is essential to gather all 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 proceedings, but it is for the employee to provide factual elements suggesting the breach.

Step 2: Attempt an Amicable Settlement

Before seising a court, it is often wise to attempt an amicable settlement. A registered letter with acknowledgement of receipt addressed to the employer, precisely setting out the breaches found and the agreement provisions disregarded, may be enough to obtain a correction. Contractual mediation or the collaborative procedure (procédure participative) are also options to consider.

Step 3: Seise 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 to be assisted by a specialised lawyer who can assess the chances of success, quantify the claims, and provide representation before the court.

Step 4: Involve Employee Representatives

Employee representatives, in particular members of the Social and Economic Committee (Comité Social et Économique, or CSE), have a right of alert where individuals’ rights are infringed. They may also contact the labour inspectorate and support employees in their proceedings. This complementary avenue should not be underestimated by employers assessing their compliance risk.

FAQ: Challenging the Application of a Collective Bargaining Agreement

What is the time limit for taking action 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 agreement, the period is 2 months from notification or publication (Article L.2262-14). For other actions (damages, enforcement of non-wage obligations), the general 2-year limitation period applies.

Can an employee bring a claim before the labour court alone?

Yes, an 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 chances 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 notification.

What sanctions apply to an employer who fails to comply with the collective agreement?

The employer faces civil sanctions (increased back pay, damages) and criminal sanctions (a Class 4 fine per employee affected, i.e. up to EUR 750 per offence). In the event of a repeat offence, penalties 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 back pay 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 the application of extended collective agreements. It may draw up an official report recording 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 agreement, please do not hesitate to contact us.

Challenging Collective Bargaining Agreement Application in France: Employer's Guide to Legal Risks