Log Book No. 128 – August 2019

In a decision rendered on 29 July 2019, the judge deciding in case no majority is reached (juge départiteur) of the Labor Court of Troyes, which was the first Labor Court to have admitted the unconventionality of the compensation schedule (CPH of Troyes, 13 December 2018, No. 18/00036) once again decided to dismiss the schedule, considering that “article L. 1235-3 of the labor code violates both article 10 of the ILO Convention No. 158 and article 24 of the European Charter of Social Rights”.  Although rendered a few days later, the judgement does not refer to the French Supreme Court’s opinion of 17 July 2019 (Cour de cassation), in which the High jurisdiction admits the compatibility of the schedule with international standards (CPH of Troyes, 29 July 2019, No. 18/00169).

It results from constant case law of the Cour de cassation that, in order to invoke the protective status related to the external mandate, the employee has to inform his employer thereof at the latest at the time of the pre-dismissal meeting.  In this case, the employee, who had an elective mandate and a labor court mandate, requested the annulment of the decision authorizing his dismissal, the labor inspector having not taken into account his labor court mandate to make his decision.  Noting that the liquidator had been made aware of the employee’s external mandate during a works council meeting prior to the pre-dismissal meeting, and that he had not mentioned it in the authorization request, the French Administrative Supreme Court (Conseil d’Etat) confirmed the illegality of the granted authorization (CE, 24 July 2019, No. 411058).

A decree of 20 August 2019 defines the conditions of payment of the employer contributions created by the Pacte law.  It also fixes the content of the annual situation statement which shall be given to the beneficiary of an employee savings plan, this obligation coming into force on 1 January 2021 (Decree No. 2019-862 of 20 August 2019, Official Journal of 22 August).

Several texts published this summer implement the reform in retirement savings provided for by the Pacte law (Order No. 2019-766 of 24 July 2019, Official Journal of 25 July; Decree No. 2019-807 of 30 July 2019, Official Journal of 1 August ; Administrative order of 7 August 2019, NOR : ECOT1917532A, Official Journal of 11 August).  According to these texts, the new retirement savings plans may be marketed as from 1 October 2019.  As for the “former” retirement savings products (PERCO, PERP…), they shall no longer be marketed as from 1 October 2020.

A “catch-all” order of 21 August 2019 corrects certain inconsistencies of the Professional Future law.  It also provides for new measures, among which the possibility to provide for a term in an apprenticeship contract longer than the duration of the training cycle, the repeal of the extinction of the DIF’s balance as from 1 January 2021, or also the institution of a transitory period so that employers are able to conform with the rules relating to professional meetings (Order No. 2019-861 of 21 August 2019, Official Journal of 22 August).

A circular of 9 August 2019 clarifies the conditions of application of the decree No. 2019-356 of 23 April 2019 relating to the investigation procedure of occupational accidents and occupational illnesses (Circular CIR-28/2019 of 9 August 2019).  It provides further details on the new time frames of this procedure.  Indeed, as a reminder, the decree of 23 April 2019 created new time frames as to the investigation procedure of occupational accidents and occupational illnesses (10 clear day time frame to express reservations regarding the accident, 20 or 30 clear day time frame to reply to the fund’s questionnaire, 10 or 40 clear day time frame to consult the file and make observations).

A decree of 20 August 2019 provides further details on the calculation methods of the daily allowance paid to an employee working part-time for health reasons (Decree No. 2019-856 of 20 August 2019, Official Journal of 22 August).

Companies having between 250 and 1,000 employees have to publish the result of their professional gender equality index on their website and communicate their indicators to the labor inspectorate services on 1 September 2019 at the latest.