Challenging Collective Bargaining Agreement Claims in France: An Employer’s Guide

Applying the relevant collective bargaining agreement (“convention collective”) is a fundamental obligation for the employer. When 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 full overview of the challenge mechanisms available — so that international employers understand the risks they face and how to prevent them.

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 (“prime conventionnelle”), failure to comply with job classification scales, application of the wrong collective agreement, refusal to grant additional leave days provided for by the agreement, or non-compliance with the minimum wage rates set by the agreement.

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 bargaining agreement

Before any action is taken, the collective agreement actually applicable to the company must be identified. 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 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.

The labour court claim: the main avenue for the employee

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 settle 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.

The employee may bring a claim before the CPH to obtain the application of collective provisions that favour them: back pay, reclassification, payment of bonuses, compliance with the disciplinary procedure set out in the agreement, and so on. Proceedings are initiated by an application filed with the registry of the competent court — 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”, 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 representative (“défenseur syndical”) or an employee from the same industry sector.

It is advisable to build a solid case 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.

Trade union action: substitution for the employee

Trade unions’ right of action

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 all actions arising from that agreement on behalf of their members, without having to prove a mandate from the person 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 bring them to an end 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 a collective agreement (Article L.2262-11 of the French Labour Code). This action is distinct from that brought for the benefit of individual employees and may result in damages being awarded to the union.

Case law broadly recognises this right of action. The Court of 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 annulment

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 annulment action 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, resulting from 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 must be brought within a period of two months from the notification of the agreement to organisations having a union branch 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 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 Court of Cassation and taken up by the 2017 Macron ordinances.

Civil penalties for non-compliance

Back pay

The most common consequence of non-compliance with a collective agreement is an order requiring the employer to pay back wages. Where the employer has failed to comply with the minimum contractual rates, mandatory bonuses or classification scales, the employee may obtain payment of the sums owed, plus 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 claimant knew or should have known the facts enabling them to bring the action. The claim may cover sums owed for the last three years from the date the CPH is seised 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 non-compliance with the collective agreement. This harm may be material (loss of income, loss of pension rights) or moral (impairment of the employee’s dignity, stress linked to financial insecurity).

However, since the Court of Cassation’s ruling of 13 April 2016 (no. 14-28.293), the employee must prove 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.

Criminal penalties

The offence of non-compliance with a collective agreement

Non-compliance with an extended collective agreement is subject to criminal penalties. Article R.2263-3 of the French Labour Code provides for a class-4 fine (up to 750 euros for a natural person) per offence found. This fine applies as many times as there are employees affected by the offence.

The criminal penalty mainly 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, failure to comply with certain contractual provisions may constitute other criminal offences. For example, non-compliance with the working-time provisions of an agreement may amount to the offence of concealed employment (“travail dissimulé”). Likewise, failure to pay the minimum contractual wage may fall within the offences relating to wage payment.

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

Practical steps to challenge non-compliance

Step 1: Gather evidence

Before 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 evidence suggesting the breach.

Step 2: Attempt an amicable settlement

Before bringing a claim before a court, it is often wise to attempt an amicable settlement. A registered letter with acknowledgement of receipt sent to the employer, precisely setting out the breaches found and the contractual provisions disregarded, may be sufficient to obtain rectification. Contractual mediation or a participatory procedure (“procédure participative”) are also options to consider.

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 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”, CSE), have a right of alert in the event of an infringement of individuals’ rights. They may also refer matters to the labour inspectorate and assist employees in their steps. This complementary avenue should not be overlooked.

FAQ: Challenging the application of a collective agreement

What is the time limit to act in the event of non-compliance with a collective 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 time limit is 2 months from notification or publication (Article L.2262-14). For other actions (damages, performance of non-wage obligations), the ordinary 2-year period applies.

Can an employee bring a claim alone before the Labour Court?

Yes, an employee may bring a claim before the CPH 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 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 them. The employee may object to this action within 15 days of being notified.

What penalties face an employer that does not comply with a collective agreement?

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

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

Yes, a dismissed employee retains the right to refer the matter to 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 contractual provisions.

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