Challenging Your Employer’s Application of a Collective Bargaining Agreement in France

Applying the applicable collective bargaining agreement (convention collective) is a fundamental obligation for the employer. 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 Avocats provides a comprehensive overview of the available means of challenge — essential knowledge for employers seeking to manage their exposure.

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 provided for by the agreement, failure to comply with classification grids, application of the wrong collective agreement, refusal to grant additional days of leave provided for under the agreement, or failure to respect the contractual minimum wages 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 basis and the competent courts may differ.

Verifying the Applicable Collective Bargaining 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 — the collective agreement identifier) must appear on the employee’s pay slip. In case of doubt, the Légifrance database may be consulted or the labour inspectorate (inspection du travail) may be contacted.

Labour Court Proceedings: 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 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.

The employee may bring proceedings before the CPH to obtain the application of collective provisions in their favour: salary arrears, reclassification, payment of bonuses, compliance with the contractual disciplinary procedure, 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 trade-union defender (défenseur syndical), or an employee from the same sector of activity.

It is advisable to build a solid file including pay slips, the employment contract, the applicable collective agreement, and any document demonstrating the employer’s breach. For employers, this underlines the importance of maintaining accurate records and documentation. Assistance from a lawyer specialised 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 Right of Unions to Bring Proceedings

Representative trade unions have their own right of action in matters relating 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 justify a mandate from the person concerned.

This mechanism, known as substitution action (action de substitution), 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 Damages for Harm Caused 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 a 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 the award of damages 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). Employers should note that a single systemic practice can therefore trigger both individual and collective claims.

Action for Annulment of a Collective Agreement Before the Judicial Court

Grounds for Bringing an Annulment Action

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, 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 must be brought within a two-month period from the notification of the agreement to the organisations having a trade-union section within 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 temporal effects of its decision in order to avoid creating 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 Sanctions for Non-Compliance

Salary Arrears

The most common sanction for non-compliance with a collective agreement is an order requiring the employer to pay salary arrears. Where the employer has not complied with the contractual minimum wages, mandatory bonuses, or classification grids, the employee may obtain payment of the sums owed, plus the corresponding 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 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 date the CPH is seised, or, where the contract has ended, for 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 financial (loss of income, loss of pension rights) or non-financial (harm to 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 establish 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 can be significant in the employer’s defence.

Criminal Sanctions

The Offence of Non-Compliance with a Collective Agreement

Non-compliance with an extended collective agreement is subject to criminal sanction. Article R.2263-3 of the French Labour Code provides for a fourth-class fine (a maximum of EUR 750 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 primarily to collective agreements extended by ministerial order. The labour inspectorate is competent 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 collective provisions may constitute other criminal offences. For example, failure to comply with the collective provisions on working time may amount to the offence of concealed employment (travail dissimulé). Similarly, failure to pay the contractual minimum wage may fall within the 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 post the judgment on the company’s premises — a particularly dissuasive measure.

Practical Steps to Bring a Challenge

Step 1: Gathering Evidence

Before any action, it is essential to gather all evidence: pay slips, the employment contract, the text of the applicable collective agreement, exchanges with the employer, colleagues’ statements, and so on. The burden of proof is shared in labour court proceedings, but it is for the employee to provide factual elements suggesting the existence of a breach.

Step 2: Attempting an Amicable Settlement

Before bringing proceedings, 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 collective provisions disregarded, may be enough to obtain a correction. Contractual mediation or a participatory procedure (procédure participative) are also options worth considering.

Step 3: Bringing Proceedings Before the Competent Court

In the absence of an amicable settlement, the employee must bring the matter before 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: Involving Employee Representatives

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

FAQ: Challenging the Application of a Collective Bargaining Agreement

What is the time limit for taking action in case 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 notification or publication (Article L.2262-14). For other actions (damages, performance of non-salary obligations), the general two-year limitation period applies.

Can an employee bring proceedings before the Labour Court alone?

Yes, the employee may seise the CPH alone, without a lawyer. However, given the complexity of issues relating to collective agreements, assistance from a specialised lawyer such as those at DAIRIA Avocats is strongly recommended to maximise the chances of success.

The 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 from notification.

What sanctions face 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 fourth-class fine per affected employee, i.e. a maximum of EUR 750 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 bring proceedings before 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 is competent 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 collective 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.