How to Voluntarily Apply a Collective Agreement?

The application of a collective agreement does not always stem from a legal obligation linked to the company’s main activity. In many situations, an employer deliberately chooses to apply a collective agreement that does not normally apply to them. This seemingly innocuous choice has significant legal consequences that every executive must understand before committing.

DAIRIA Law breaks down the mechanisms of voluntary application, its forms, its effects, and the possibilities for reversal.

What is the Voluntary Application of a Collective Agreement?

The voluntary application of a collective agreement refers to a situation in which an employer decides, without being legally bound, to submit their company to the provisions of a specific collective agreement. This approach differs from mandatory application, which arises either from membership in a signatory employer organisation or a ministerial extension order (Article L.2261-2 of the French Labour Code).

In practice, voluntary application may result from several situations:

• The employer wishes to offer a conventional framework to their employees when no extended agreement covers their sector.
• The employer prefers to apply a more favourable agreement than that which normally applies.
• The employer mistakenly applies another agreement in good faith.
• The employer takes over a company whose employees benefitted from a different agreement.

Regardless of the initial motivation, the legal effects remain the same once voluntary application is established.

Forms of Voluntary Application

Mention on Payslips

The most common form of voluntary application arises from the mention of a collective agreement on employees’ payslips. According to Article R.3243-1 of the French Labour Code, the payslip must indicate the title of the applicable collective agreement. When the employer includes a convention that is not legally imposed upon them, this mention obligates them to apply the said convention.

The Cour de cassation has consistently established this principle: “the mention of a collective agreement on the payslip constitutes recognition of the application of this agreement to the company” (Cass. soc., 18 November 1998, n° 96-42.991). This case law has been confirmed numerous times (Cass. soc., 15 November 2007, n° 06-44.008).

It is important to highlight that this mention creates a simple presumption: the employer can provide counter-evidence by demonstrating that it was a clerical error, but such proof is practically very difficult to provide when the mention is present on payslips for a significant duration.

Mention in Employment Contracts

Incorporating a collective agreement reference in employment contracts constitutes an even stronger commitment. Since the employment contract is the law of the parties, mentioning a collective agreement in this document creates a contractual right for the employee. The Cour de cassation holds that “the reference to a collective agreement in the employment contract constitutes a contractual clause” (Cass. soc., 13 March 2001, n° 99-45.651).

The consequence is significant: unlike unilateral commitments or practices, a contractual clause cannot be modified or eliminated without the individual agreement of each concerned employee. Therefore, the employer cannot unilaterally withdraw from this commitment.

Unilateral Commitment of the Employer

Voluntary application may also result from a formal unilateral commitment by the employer, for example through a service note, internal regulations, or a decision displayed within the company. This unilateral commitment binds the employer until it has been properly rescinded according to the applicable procedures for unilateral commitments.

Company Practice

Lastly, the repeated, constant, and general application of a collective agreement may characterise a company practice. For a practice to be recognised, three cumulative conditions must be met: generality (application to the entire personnel or an objective category), constancy (regular and non-random application), and fixity (determined and stable application criteria).

Legal Consequences of Voluntary Application

Obligation to Apply the Entire Agreement

One of the most debated issues in case law concerns the scope of commitment: must an employer who voluntarily applies a collective agreement apply it in its entirety, or can they limit themselves to certain provisions?

The response from the Cour de cassation is nuanced. In principle, “an employer who decides to voluntarily apply a collective agreement is obliged to apply all its provisions” (Cass. soc., 10 February 1999, n° 96-44.337). This principle is based on the idea that the collective agreement forms an indivisible whole, an overall balance between rights and obligations.

However, case law admits some temperaments. When the employer’s commitment relates expressly only to certain provisions — for example, a salary scale or an occupational health regime — courts may limit the obligation to only those provisions. The Cour de cassation has ruled that “when the employer’s commitment concerns only certain advantages of the collective agreement, employees cannot claim the benefits of other provisions” (Cass. soc., 19 November 2008, n° 07-40.749).

In practice, the distinction between total and partial application depends on the phrasing of the commitment. A generic mention such as “National collective agreement of metallurgy” on the payslip implies full application, while a contractual clause specifying “the provisions concerning leave of the CCN X are applicable” may limit the commitment.

Interaction with the Mandatorily Applicable Agreement

When the company is already subject to a mandatory collective agreement (by extension or employer membership), the voluntary application of another agreement creates a situation of accumulation. According to Article L.2254-1 of the French Labour Code, the employee can invoke the most favourable provisions of each of the two agreements, according to the principle of favour.

This accumulation can prove extremely costly for the employer. The comparison is made advantage by advantage, within each homogeneous category of provisions, in accordance with established case law (Cass. soc., 17 July 2001, n° 99-41.917). The employer then finds themselves obliged to apply the most advantageous regime arising from two distinct agreements.

Effects on Current and Future Employees

The voluntary application benefits all employees present in the company at the time of commitment, as well as employees hired subsequently as long as the commitment has not been validly rescinded. No seniority or professional category conditions can be opposed unless the initial commitment was limited to a specific category.

Rescinding Voluntary Application

Rescission as Practice

When voluntary application results from a company practice or unilateral commitment, the employer can terminate it by adhering to the rescission procedure established by case law. This procedure imposes three cumulative conditions:

1. Informing employee representatives: the social and economic committee (CSE) must be informed of the employer’s decision to rescind the practice. This information must be precise enough to facilitate an informed discussion.
2. Individual information of employees: each concerned employee must be personally informed, preferably in writing, of the rescindment of the practice. Simple posting is not sufficient.
3. Respecting a sufficient notice period: the employer must allow a reasonable period between the announcement of the rescission and its effective date. This period, assessed sovereignly by the judges, must allow for possible substitution negotiations. In practice, a three-month period is generally considered sufficient.

The Cour de cassation has reiterated these requirements in a landmark ruling: “the employer cannot eliminate a practice unless they have followed the rescission procedure, which requires informing employee representatives and each interested employee” (Cass. soc., 16 March 1989, n° 85-45.934).

Impossibility of Rescinding a Contractual Advantage

On the other hand, when voluntary application results from a clause in the employment contract, unilateral rescission is impossible. The employer must obtain the express agreement of each employee to modify or eliminate the contractual collective reference. The employee’s refusal does not constitute a fault and cannot justify dismissal (Cass. soc., 14 May 1998, n° 96-43.767).

Nevertheless, if the employer wishes to eliminate the advantage, they may consider economic dismissal if the elimination is justified by genuine economic difficulties, but they must adhere to the entirety of the economic dismissal procedure and pay the corresponding indemnities.

Effects of Rescission

Regularly rescinding voluntary application ends the employer’s obligations for the future. Employees can no longer claim the benefit of the conventional provisions from the effective date of the rescission. However, rights accrued before the rescission remain intact: wages owed, accrued leave, benefits calculated based on the rescinded convention for the prior period.

It is important to note that the rescission of voluntary application does not follow the regime for rescinding a collective agreement as per Article L.2261-9 of the French Labour Code. There is thus no 15-month survival period (3 months’ notice + 12 months), nor an obligation to negotiate a substitution agreement, nor a remuneration guarantee under Article L.2261-13. This distinction is fundamental and constitutes an advantage for the employer wishing to reverse their commitment.

Precautions for Employers

Before Committing

Before voluntarily applying a collective agreement, the employer must evaluate the entirety of the consequences of their choice:

• Assess the total cost: minimum wages, conventional bonuses, increased redundancy compensations, mandatory insurance schemes, extra leave
• Check compatibility with any already applicable agreements to avoid costly accumulation
• Draft precisely the contractual clause or commitment note to accurately delineate the scope of application
• Anticipate the possibility of rescission by avoiding irreversible contractual commitments

During Application

The employer must ensure the effective application of all the provisions to which they have committed. Partial or intermittent application exposes the company to wage and benefit claims over a three-year period (triannual prescription of Article L.3245-1 of the French Labour Code), and even to damages for unfair execution of the employment contract.

They must also monitor the developments in the voluntarily applied agreement: amendments, revisions, and new conventional provisions apply to them to the same extent as the initial provisions.

In the Event of Rescission

Rescission must be prepared rigorously: compiling a supporting file, scrupulously respecting the information procedure, allowing for a reasonable notice period, and if possible, opening negotiations with employee representatives to facilitate the transition.

Litigation Risks

Disputes concerning voluntary application are frequent and mainly focus on:

• The reclassification of partial application as total application
• Non-compliance with the rescission procedure of a practice
• Calculation of wage recalls and conventional benefits
• Determining the effectively applicable convention in case of conflict

In litigation, the burden of proof weighs differently depending on the situations: it is the employee’s responsibility to prove the existence of the employer’s voluntary commitment, but it is the employer’s responsibility to demonstrate that they have regularly rescinded this commitment.

Condemnations can be significant: wage recalls over three years, damages, or even nullity of dismissal if the rescission of a contractual advantage led to unfair dismissal.

FAQ — Voluntary Application of a Collective Agreement

Does mentioning a collective agreement on the payslip obligate the employer?

Yes. The consistent case law of the Cour de cassation considers that mentioning a collective agreement on the payslip constitutes a presumption of voluntary application. The employer is then obliged to apply the provisions of this agreement unless they can prove it was a clerical error, which remains very difficult in practice.

Can the employer apply only certain provisions of an agreement?

In principle, voluntary application entails applying all the conventional provisions. However, if the employer’s commitment is expressly limited to certain provisions (through a precise contractual clause or a targeted unilateral commitment), courts may admit partial application. The wording of the commitment is therefore critical.

How can the voluntary application of a collective agreement be terminated?

If the application stems from a practice or unilateral commitment, the employer can rescind it by informing employee representatives and each employee individually while adhering to a sufficient notice period. If the application stems from a contractual clause, each employee’s agreement is required.

What is the difference between rescinding a practice and rescinding a collective agreement?

The rescission of a practice (voluntary application) follows the simple case law procedure: information of employee representatives, individual information of employees, notice period. The legally defined rescission of a collective agreement follows the statutory regime of Articles L.2261-9 and subsequent of the French Labour Code, involving a 3-month notice period, 12 months of survival, and the obligation to negotiate a substitution agreement.

Does voluntary application create an individually acquired advantage?

No, strictly speaking. The notion of an individually acquired advantage (now replaced by the remuneration guarantee since the Labour Law of 2016) applies only to the rescission of a collective agreement or understanding in the legal sense. The rescission of a voluntary application practice ends the advantage for the future, without retaining it in terms of individually acquired advantages.