How to Challenge the Application of a Collective Agreement by Your Employer?
The application of a collective agreement constitutes a fundamental obligation for the employer. When the employer fails to comply with applicable contractual provisions, employees and trade unions have several avenues for recourse. What actions should be initiated? Before which courts? With what consequences? DAIRIA Avocats provides a comprehensive overview of the available contestation means.
Identifying Non-compliance with the Collective Agreement
The Most Common Forms of Breach
The employer’s non-compliance with a collective agreement can take various forms. This may include the non-payment of a contractual bonus, failure to adhere to classification grids, application of an incorrect collective agreement, refusal to grant additional leave days stipulated in the contractual text, or failure to comply with conventional minimum wage standards.
It is crucial to distinguish between two situations: one in which the employer applies the wrong collective agreement, and the other in which the correct agreement is applied but certain provisions are disregarded. In both cases, the employee has recourse options, but the legal grounds and the competent jurisdictions may differ.
Verifying the Applicable Collective Agreement
Before taking any action, it is vital to ascertain the collective agreement that is actually applicable to the company. This is determined by the principal activity of the employer, in accordance with Article L.2261-2 of the French Labour Code. The IDCC code (Collective Agreement Identifier) must appear on the employee’s payslip. In cases of doubt, one can consult the Légifrance database or seek assistance from the labour inspectorate.
The Prud’hommes Action: The Main Route for Employees
The Competence of the Conseil de prud’hommes (CPH)
The Conseil de prud’hommes is the naturally competent jurisdiction for resolving individual disputes arising from the application of a collective agreement between an employee and their employer. This competence stems from Article L.1411-1 of the French Labour Code, which assigns the CPH the resolution of individual disputes arising in connection with the employment contract.
An employee can approach the CPH to enforce the contractual provisions that are favourable to them: salary arrears, reclassification, payment of bonuses, respect for conventional disciplinary procedures, etc. The claim is made by a request submitted to the registry of the competent council, either that of the workplace, the employee’s residence if working from home, or the place of contract conclusion.
The Procedure Before the CPH
The prud’homale procedure begins with a conciliation phase before the Bureau de Conciliation et d’Orientation (BCO). If unsuccessful, the case is referred to the judging office. The employee may be assisted or represented by a lawyer, a union representative, or another employee from the same industry.
It is recommended to compile a solid dossier including payslips, the employment contract, the applicable collective agreement, and any documents demonstrating the employer’s breach. The support of a lawyer specialised in employment law, such as those at DAIRIA Avocats, is highly advisable to optimize the chances of success.
Union Action: Substitution for the Employee
The Right of Unions to Act
Representatives of trade unions have their own right to act concerning collective agreements. Article L.2262-9 of the French Labour Code stipulates that unions bound by a collective agreement may take all actions arising from this agreement on behalf of their members, without needing to justify a mandate from the individual concerned.
This mechanism, known as substitution action, is a powerful tool. The union can act in the name and on behalf of the employee, as long as the latter has been informed and has not opposed it. However, the employee retains the right to intervene in the action initiated by the union and can terminate it at any time.
Action for Compensation for Harm Caused to the Collective Interest of the Profession
Beyond the substitution action, unions can act in their own name to seek compensation for harm caused to the collective interest of the profession due to the violation of the collective agreement (Article L.2262-11 of the French Labour Code). This action is distinct from that pursued on behalf of employees individually and can lead to the award of damages in favour of the union.
Case law widely recognises this right to act. The Court of Cassation has thus ruled that the systematic non-respect of a collective agreement necessarily undermines the collective interest of the profession (Cass. soc., 12 February 2013, No. 11-27.689).
Action for Nullity of a Collective Agreement Before the Tribunal Judiciaire
Grounds for Action for Nullity
When the dispute concerns not the application of a convention but the very validity of a collective agreement, the Tribunal Judiciaire (TJ) is competent. An action for nullity may be based on several grounds: defect of consent during negotiation, failure to meet required majority conditions, violation of public policy provisions, or discrimination.
Article L.2262-14 of the French Labour Code, stemming from Order No. 2017-1385 of 22 September 2017, strictly regulates the timeframes for bringing an action for nullity. Any action for the nullity of a convention or a collective agreement must be initiated within a two-month period from the notification of the agreement to the organisations with a union representative in the company or from the publication of the agreement in the national database.
Effects of Nullity
The nullity of a collective agreement may be total or partial, depending on the severity of the defect found and whether the clauses are divisible or not. The judge may decide to modulate the temporal effects of their decision to avoid creating disproportionate legal uncertainty. This possibility has been recognized by case law of the Court of Cassation and reiterated by the Macron ordinances of 2017.
Civil Sanctions for Non-compliance
Salary Arrears
The most frequent penalty for failing to respect a collective agreement consists of the employer being ordered to pay salary arrears. When the employer has not adhered to the conventional minima, mandatory bonuses, or classification grids, the employee may claim the amounts owed, increased by the related paid leaves.
The limitation period applicable to salary arrears is three years, in accordance with Article L.3245-1 of the French Labour Code. This period begins from the day when the claimant knew or should have known the facts allowing them to take action. The claim can cover amounts due for the three years preceding the CPH’s notification, or, in the event of contract termination, for the three years preceding the termination.
Damages
In addition to salary arrears, the employee may seek the award of damages for harm suffered due to the non-respect of the collective agreement. This harm can be material (loss of income, loss of pension rights) or moral (damage to the employee’s dignity, stress related to financial instability).
However, following the Court of Cassation ruling on 13 April 2016 (No. 14-28.293), the employee must demonstrate prejudice distinct from mere payment delays to obtain damages in addition to salary arrears. The mere finding of a breach is no longer sufficient to warrant additional compensation.
Penal Sanctions
The Offence of Non-compliance with the Collective Agreement
Non-compliance with an extended collective agreement is penalized. Article R.2263-3 of the French Labour Code stipulates a 4th class fine (up to 750 euros for a natural person) for each infraction observed. This fine applies as many times as there are employees affected by the infraction.
The penal sanction primarily concerns conventions and agreements extended by ministerial order. The labour inspectorate is responsible for observing violations through official reports and referring the case to the public prosecutor.
Other Related Penal Sanctions
Beyond the specific fine, non-compliance with certain conventional provisions may constitute other penal infractions. For example, violating conventional working time provisions may constitute the offence of concealed work. Similarly, non-payment of the conventional minimum wage may fall under infractions related to wage payment.
In case of repeat offences or multiple breaches, sanctions can be significantly increased. The employer may also be ordered to display the judgment in the company’s premises, a particularly deterrent measure.
Practical Steps to Challenge
Step 1: Gather Evidence
Before taking any action, it is essential to compile all evidence: payslips, employment contract, text of the applicable collective agreement, exchanges with the employer, colleague testimonials, etc. The burden of proof is shared in prud’homale matters, but it is the employee’s responsibility to present factual elements suggesting the breach.
Step 2: Attempt an Amicable Settlement
Before initiating legal proceedings, it is often wise to attempt an amicable resolution. A registered letter with acknowledgment of receipt addressed to the employer, precisely outlining the observed breaches and the disregarded contractual provisions, may suffice to achieve a regularization. Conventional mediation or a participative procedure are also options to consider.
Step 3: Refer the Competent Jurisdiction
In the absence of an amicable resolution, the employee must refer the Conseil de prud’hommes within the applicable limitation periods. It is strongly advised to be accompanied by a specialized lawyer who can assess the chances of success, quantify claims, and ensure representation before the jurisdiction.
Step 4: Seek Support from Employee Representatives
Employee representatives, notably members of the Comité Social et Économique (CSE), have the right to alert in case of infringements on individuals’ rights. They can also approach the labour inspectorate and assist employees in their actions. This complementary avenue should not be overlooked.
FAQ: Challenging the Application of a Collective Agreement
What is the Deadline to Act 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 for nullity of a collective agreement, the period is 2 months from the notification or publication (Article L.2262-14). For other actions (damages, enforcement of non-salary obligations), the general 2-year limitation applies.
Can an Employee Act Alone Before the Conseil de prud’hommes?
Yes, an employee can approach the CPH alone without a lawyer. However, given the complexity of issues related to collective agreements, the assistance of a specialized lawyer like those at DAIRIA Avocats is highly recommended to maximize chances of success.
Can a Union Act Without the Employee’s Consent?
The union can exercise the substitution action provided in Article L.2262-9 of the French Labour Code without the employee’s mandate, but it must inform them. The employee can oppose this action within 15 days of notification.
What Penalties Does an Employer Face for Non-compliance with the Collective Agreement?
The employer is exposed to civil sanctions (increased salary arrears, damages) and penal sanctions (4th class fine per affected employee, i.e., a maximum of 750 euros per infraction). In the case of repeat offences, the penalties are compounded.
Can the Application of a Collective Agreement Be Challenged After Termination?
Yes, the terminated employee retains the right to approach the Conseil de prud’hommes for salary arrears and damages related to non-compliance with the collective agreement during 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 conventions and agreements. It can issue an official report of violation and compel the employer to comply with the conventional provisions.
This article is written by social law experts at DAIRIA Avocats. For any questions regarding the application of your collective agreement, feel free to consult us.