How to Voluntarily Apply a Collective Bargaining Agreement in France?

The application of a collective bargaining agreement (CBA) does not always arise from a legal obligation linked to the company’s primary activity. In many situations, the employer deliberately chooses to apply a CBA that is not normally applicable to them. This seemingly innocuous choice carries significant legal consequences that every executive must understand before proceeding.

The DAIRIA Avocats law firm clarifies the mechanisms of voluntary application, its forms, effects, and the options for reversal.

What is Voluntary Application of a Collective Bargaining Agreement?

Voluntary application of a collective bargaining agreement refers to the situation in which an employer decides, without any legal obligation, to subject their company to the provisions of a given CBA. This approach contrasts with mandatory application, which stems from either affiliation to a signatory employer organization or a ministerial extension order (Article L.2261-2 of the French Labour Code).

In practice, voluntary application may arise from several situations:

• The employer wishes to provide a contractual framework to employees when no extended CBA covers their sector of activity.
• The employer prefers to apply a more favorable CBA than the one normally applicable.
• The employer mistakenly applies a different CBA in good faith.
• The employer takes over a business whose employees were covered by a different CBA.

Regardless of the initial motivation, the legal effects are identical as long as the voluntary application is characterized.

Forms of Voluntary Application

Mention on Payslips

The most common form of voluntary application arises from the mention of a collective bargaining agreement on employees’ payslips. In accordance with Article R.3243-1 of the French Labour Code, the payslip must specify the title of the applicable collective bargaining agreement. When the employer includes a CBA that is not legally imposed on them, this mention constitutes a commitment to apply said agreement.

The Court of Cassation has consistently established this principle: “the mention of a collective bargaining agreement on the payslip qualifies as recognition of the application of this agreement to the company” (Cass. soc., November 18, 1998, no. 96-42.991). This jurisprudence has been confirmed many times (Cass. soc., November 15, 2007, no. 06-44.008).

It is important to emphasize that this mention creates a simple presumption: the employer can provide contrary evidence by demonstrating that it was a material error, but proving this is practically difficult when the mention appears on payslips for a significant duration.

Mention in Employment Contracts

Including a reference to a collective bargaining agreement in the employment contract constitutes an even stronger commitment. The employment contract being the law of the parties, referencing a CBA in this document creates a contractual right for the employee. The Court of Cassation considers that “the reference to a collective bargaining agreement in the employment contract constitutes a contractual clause” (Cass. soc., March 13, 2001, no. 99-45.651).

The consequence is significant: unlike a unilateral commitment or a customary practice, a contractual clause cannot be modified or removed without the individual agreement of each concerned employee. The employer cannot unilaterally revert on this commitment.

Unilateral Commitment by the Employer

Voluntary application can also result from a formal unilateral commitment by the employer, for example, through a memorandum, internal regulation, or a publicly posted decision within the company. This unilateral commitment binds the employer until it has been properly terminated according to the applicable procedures for unilateral commitments.

Company Practice

Finally, the repeated, constant, and general application of a collective bargaining agreement may characterize a company practice. For a practice to be recognized, three cumulative conditions must be met: generality (application to all staff or an objective category), constancy (regular and not random application), and fixity (determined and stable application criteria).

Legal Consequences of Voluntary Application

Obligation to Apply the Entire CBA

One of the most debated questions in case law concerns the extent of the commitment: must the employer who voluntarily applies a CBA apply it in its entirety, or can they limit themselves to certain provisions?

The Court of Cassation’s answer is nuanced. In principle, “the employer who decides to voluntarily apply a collective bargaining agreement is bound to apply all of its provisions” (Cass. soc., February 10, 1999, no. 96-44.337). This principle is based on the idea that a collective bargaining agreement forms an indivisible whole, a global balance between rights and obligations.

However, case law accepts mitigations. When the employer’s commitment expressly pertains only to certain provisions—such as a wage scale or a benefits regime—courts can limit the obligation to those specific provisions. The Court of Cassation has held that “when the employer’s commitment pertains only to certain advantages of the collective bargaining agreement, employees cannot claim the benefits of other provisions” (Cass. soc., November 19, 2008, no. 07-40.749).

In practice, the distinction between total and partial application depends on the wording of the commitment. A generic mention like “National collective bargaining agreement for metallurgy” on the payslip entails full application, while a contractual clause specifying “the provisions relating to leave of CBA X are applicable” may limit the commitment.

Coordination with Mandatory Collective Bargaining Agreements

When the company is already subject to a mandatory collective bargaining agreement (by extension or employer membership), the voluntary application of another CBA creates a situation of accumulation. According to Article L.2254-1 of the French Labour Code, the employee can benefit from the most favorable provisions of each of the two agreements, based on the principle of favorability.

This accumulation can be 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., July 17, 2001, no. 99-41.917). The employer then finds themselves bound to apply the most favorable 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 the commitment, as well as employees hired later, as long as the commitment has not been validly terminated. No conditions of seniority or professional category can be opposed unless the initial engagement was itself limited to a specific category.

Termination of Voluntary Application

Termination as Usage

When voluntary application results from a company practice or a unilateral commitment, the employer can terminate it by adhering to the termination procedure for uses 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 terminate the usage. This information must be sufficiently precise to allow for an informed discussion.
2. Individual notification of employees: each affected employee must be personally informed, preferably in writing, of the termination of the usage. A simple posting is insufficient.
3. Observing a sufficient notice period: the employer must allow for a reasonable period between the announcement of the termination and its effective date. This period, assessed at the discretion of the lower courts, must allow for potential substitute negotiations. In practice, a three-month notice is generally considered sufficient.

The Court of Cassation has reiterated these requirements in a landmark ruling: “the employer cannot eliminate a usage until after the termination procedure has been followed, which requires the information of employee representatives and each interested employee” (Cass. soc., March 16, 1989, no. 85-45.934).

Inability to Terminate a Contractual Advantage

Conversely, when voluntary application arises from a clause of the employment contract, unilateral termination is impossible. The employer must obtain the express agreement of each employee to modify or remove the contractual reference to the CBA. An employee’s refusal does not constitute a fault and cannot justify dismissal (Cass. soc., May 14, 1998, no. 96-43.767).

However, if the employer still wishes to eliminate the advantage, they may consider a dismissal for economic reasons if the termination is justified by real economic difficulties, but they must comply with the full procedure for economic dismissal and pay the corresponding indemnities.

Effects of Termination

The regular termination of voluntary application ends the employer’s obligations for the future. Employees can no longer claim the benefits of the collective provisions as of the termination effective date. However, rights acquired before the termination remain intact: owed salaries, accrued leave, and allowances calculated based on the terminated CBA for the previous period.

It is important to note that the termination of voluntary application does not follow the regime of terminating a collective bargaining agreement within the meaning of Article L.2261-9 of the French Labour Code. Therefore, there is no survival period of 15 months (3 months’ notice + 12 months), nor an obligation to negotiate a substitution agreement, nor wage guarantees under Article L.2261-13. This distinction is fundamental and constitutes an advantage for the employer wishing to revert on their commitment.

Precautions for Employers

Before Committing

Before voluntarily applying a collective bargaining agreement, the employer needs to assess all the consequences of their choice:

• Evaluate the total cost: minimum wages, contractual bonuses, increased severance pay, mandatory insurance regime, additional leave.
• Check compatibility with any already applicable convention to avoid costly accumulation.
• Draft precisely the contractual clause or the commitment note to clearly delineate the scope of application.
• Anticipate the possibility of termination by avoiding irreversible contractual engagements.

During Application

The employer must ensure the effective application of all provisions to which they have committed. Partial or intermittent application exposes the company to salary recalls and benefits over three years (three-year limitation period under Article L.3245-1 of the French Labour Code), even to damages for breach of contract.

They must also monitor changes in the voluntarily applied agreement: amendments, revisions, and new contractual provisions are binding on them just as the initial provisions.

In Case of Termination

Termination should be prepared meticulously: assembling documentation, scrupulously following the information procedure, providing a reasonable notice period, and, if possible, opening negotiations with employee representatives to accompany the transition.

Litigation Risks

Disputes regarding voluntary application are frequent and mainly concern:

• The reclassification of partial application into total application.
• Non-compliance with the termination procedure of a practice.
• Calculation of salary recalls and collective advantages.
• Determination of the effectively applicable agreement in case of conflict.

In case of disputes, the burden of proof differs according to 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 terminated this commitment.

Condemnations can be significant: salary recalls over three years, damages, or even nullification of dismissal if the termination of a contractual advantage led to wrongful dismissal.

FAQ — Voluntary Application of a Collective Bargaining Agreement

Does the mention of a collective bargaining agreement on the payslip obligate the employer?

Yes. The constant jurisprudence of the Court of Cassation holds that mentioning a collective bargaining agreement on the payslip constitutes a presumption of voluntary application. The employer is then bound to apply the provisions of that agreement unless they can prove it was a material error, which is very difficult in practice.

Can the employer apply only certain provisions of a collective bargaining agreement?

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

How can an employer terminate the voluntary application of a collective bargaining agreement?

If the application results from a usage or unilateral commitment, the employer can terminate it by informing employee representatives and each employee individually while respecting a sufficient notice period. If the application arises from a contractual clause, each employee’s agreement is necessary.

What is the difference between terminating a usage and terminating a collective bargaining agreement?

Termination of a usage (voluntary application) follows the simplified case law procedure: informing employee representatives, individual notification of employees, notice period. Termination of a collective bargaining agreement in the strict sense follows the legal regime outlined in Articles L.2261-9 and subsequent of the French Labour Code, with a 3-month notice, 12-month survival, and an obligation to negotiate a substitution agreement.

Does voluntary application create an acquired individual advantage?

Not strictly. The concept of acquired individual advantage (now replaced by wage guarantee since the 2016 Labour Law) applies only to the termination of a collective agreement or a legal agreement. The termination of a voluntary application usage ends the advantage for the future, without maintenance as acquired individual advantages.