Day-Rate Agreements (Forfait Jours) When the Applicable Collective Agreement Changes: What Employers Need to Know (Cass. soc., 25 March 2026, No. 24-22.129)
The Facts
A company had for several years applied a national collective bargaining agreement (convention collective nationale — CCN, an industry-wide collective agreement) that allowed for the conclusion of individual annual day-rate agreements (conventions individuelles de forfait en jours — individual fixed-days-per-year agreements), with a ceiling set at 218 working days per year. On this basis, several of the company’s autonomous managerial employees (cadres autonomes) had signed individual day-rate agreements set at 218 days.
A managerial employee subject to this day-rate arrangement challenged the application of that collective agreement to the company. He argued that the company’s actual and principal activity did not fall within the professional scope of the CCN initially chosen, but in fact came under a different collective agreement whose scope genuinely matched the activity carried out.
Crucially, this genuinely applicable collective agreement provided for a day-rate ceiling below 218 days. The employee inferred that he had worked beyond the authorised contractual ceiling and, accordingly, claimed payment of salary arrears for the excess days worked.
The lower courts sided with the employee on the question of the applicable collective agreement: the company’s principal activity did indeed fall under a CCN different from the one initially applied. However, the Court of Appeal held that the change of collective agreement rendered the individual day-rate agreement null and void, on the ground that it had been concluded on the basis of an inapplicable collective text.
The employer lodged an appeal before the Cour de cassation (French Supreme Court, labour division), challenging the outright annulment of the individual day-rate agreement. The employee lodged a cross-appeal, taking the view that the financial consequences ought to have been more substantial.
The Legal Issue
The question submitted to the Cour de cassation was as follows: where it is held that a company’s activity falls under a collective agreement different from the one initially applied, and where this new agreement provides for a lower day-rate ceiling, what becomes of the individual day-rate agreement concluded with the employee?
More specifically, the Court had to determine whether the individual day-rate agreement must be annulled in its entirety, or whether it can survive the change of applicable collective agreement, subject to an adjustment of the number of working days to the ceiling provided by the genuinely applicable agreement.
This question is of considerable practical importance, because many companies apply a collective agreement that does not correspond to their principal activity — sometimes in good faith, sometimes out of convenience. The consequences of such a change on existing day-rate agreements can be financially very heavy.
The issue also concerns the intrinsic validity of the individual agreement: does its validity require the underlying collective agreement to be genuinely applicable, or is it sufficient that a collective agreement authorising recourse to day-rate arrangements exists?
The Cour de Cassation’s Ruling
By a judgment of 25 March 2026 (No. 24-22.129), the labour division of the Cour de cassation partially quashed the Court of Appeal’s decision.
The Supreme Court laid down a nuanced and pragmatic principle: where a company’s activity falls under a collective agreement different from the one initially applied, and where that agreement provides for a day-rate arrangement with a lower ceiling, the individual day-rate agreement concluded between the parties remains valid, but the number of working days must be reduced to the ceiling set by the genuinely applicable collective agreement.
In other words, the Cour de cassation declined to annul the individual day-rate agreement in its entirety. It held that the parties’ intention to resort to a day-rate arrangement remains valid provided that the genuinely applicable collective agreement also authorises such a mechanism. However, the applicable day ceiling is that of the collective agreement which actually corresponds to the company’s activity.
The Court criticised the Court of Appeal for having declared the individual day-rate agreement wholly null and void, when it was simply necessary to reduce the number of days to the applicable contractual ceiling. This solution preserves the day-rate mechanism while ensuring compliance with the applicable collective provisions.
The practical consequence is as follows: the employee may claim payment for days worked in excess of the ceiling under the genuinely applicable collective agreement, but he cannot obtain a reclassification of his working time as a standard hourly regime for the entire period. The day-rate arrangement subsists, but is capped differently.
This solution strikes a balance between the protection of employee rights and the employer’s legal certainty, avoiding the disproportionate consequences of a complete annulment of the day-rate arrangement.
Context: Development or Confirmation?
This judgment constitutes a significant contribution to case law in day-rate litigation, an area that has continued to grow for several years.
Until now, the Cour de cassation’s case law on day-rate arrangements had focused primarily on the conditions of validity of the individual agreement (the need for a collective agreement, sufficient provisions regarding the monitoring of workload, respect for the right to health and rest) and on the consequences of invalidating such an agreement (reversion to the ordinary hourly regime with payment of overtime).
The question of a change in the applicable collective agreement, and its impact on the day-rate arrangement, had not yet been settled so explicitly. Some courts of appeal had held the day-rate arrangement to be wholly void, while others had adopted a more flexible approach by maintaining the arrangement with an adjusted ceiling.
The Cour de cassation came down in favour of the second, more pragmatic approach. It follows a logic of preservation of legal acts: where it is possible to save an act by correcting it rather than annulling it, the least destructive solution should be preferred.
This approach is consistent with the general trend in labour case law, which increasingly seeks to strike a balance between the protection of employees’ rights and the legal predictability that businesses require.
This solution may also be compared with the case law on the effects of the challenge to a collective agreement (Article L. 2261-14 of the French Labour Code), which provides for a mechanism of substitution rather than the abrupt disappearance of contractual benefits.
It should be noted, however, that this solution assumes that the genuinely applicable collective agreement also authorises recourse to day-rate arrangements. Otherwise, the individual day-rate agreement could not be maintained and would have to be annulled, with the usual consequences in terms of reclassification into the hourly regime.
Practical Implications for Employers
This judgment requires employers to exercise heightened vigilance on several essential points.
1. Verify the collective agreement that genuinely applies
Determining the applicable collective agreement rests on the company’s principal activity. It is imperative to conduct a regular audit of this question, particularly where the activity evolves. The criteria for determination are:
- The company’s actual principal activity (and not the one declared at the time of registration);
- The APE code (business activity code), which is merely an indicator and does not bind the courts;
- The turnover generated by each activity in the case of multiple activities;
- The number of employees assigned to each activity.
2. Adapt day-rate agreements
If there is any doubt as to the applicable collective agreement, it is advisable to ensure that individual day-rate agreements comply with the lowest ceiling among the potentially applicable collective agreements. This precaution helps limit financial exposure in the event of litigation.
3. Anticipate the financial consequences
Where the applicable collective agreement changes, days worked in excess of the contractual ceiling will have to be paid together with the corresponding uplifts. It is therefore essential to quantify this financial exposure as early as possible and to make provisions accordingly.
4. Secure workload monitoring
Irrespective of the question of the applicable collective agreement, the employer must ensure that the workload-monitoring measures provided by the genuinely applicable collective agreement are actually implemented. A failure to monitor may render the day-rate arrangement void, regardless of the number of days set.
5. Consult a specialist lawyer in case of doubt
The question of the applicable collective agreement is technically complex, and the financial stakes are considerable. DAIRIA Avocats recommends that any company with doubts on this point promptly carry out a compliance audit, in order to regularise the situation before litigation arises.
FAQ
What happens if the genuinely applicable collective agreement does not provide for day-rate arrangements?
If the genuinely applicable collective agreement does not allow recourse to day-rate arrangements, the individual day-rate agreement is void. The employee is then subject to the ordinary hourly regime (35 hours per week) and may claim payment of all overtime worked beyond that duration, within the three-year limitation period. The financial consequences can be considerable, including salary arrears, overtime uplifts, mandatory compensatory rest, and damages.
Can the employer regularise the situation by retroactively applying the correct collective agreement?
The application of a collective agreement is a question of fact, determined by the company’s principal activity. The employer cannot retroactively choose to apply one agreement or another. However, it can regularise the situation for the future by henceforth applying the collective agreement corresponding to its actual activity, by informing employees and staff representatives, and by adapting the individual day-rate agreements accordingly. For the past, any salary arrears due will have to be settled within the limitation period.
Can the employee refuse the adjustment of the number of days in the day-rate arrangement?
The adjustment of the number of days results from the application of the genuinely applicable collective agreement. This is not a modification of the individual day-rate agreement requiring the employee’s consent, but the application of a mandatory collective norm. The employee therefore cannot object to the reduction in the number of days, which is in any event favourable to him. On the other hand, if the adjustment were to lead to a reduction in remuneration, the employee’s consent would be required, since remuneration is an essential element of the employment contract.
Does the employer risk sanctions beyond the salary arrears?
In addition to salary arrears for days worked beyond the contractual ceiling, the employer may be exposed to damages for wrongful performance of the employment contract (exécution déloyale), if the courts find that the application of the wrong collective agreement resulted from a deliberate intention. Furthermore, non-compliance with the applicable collective agreement may give rise to penalties from the labour inspectorate (inspection du travail) and constitute the criminal offence of obstruction (délit d’entrave) where staff representatives are concerned. The URSSAF (social security collection agency) risk must also be taken into account, as arrears of social security contributions may be claimed on the sums due.