This Summer News Macron & Rebsamen Laws : All you need to know

Transcription

1 This Summer News Macron & Rebsamen Laws : All you need to know Laurence Renard Partner Employment Department Paris Office 01 October 2015

2 THE REBSAMEN LAW INDEX Unique Delegation of Employee Representatives, a Sole Institution Common Institution (for companies with more than 300 employees) Modernisation of Meetings with Employees Representatives Information / Consultation of Works Council Health & Safety Committee Mandatory Collective Negotiations Collective agreements with Staff Representatives Fixed-Term Contracts Dismissal for Physical Unfitness THE MACRON LAW Employment Tribunal Procedure / Alternative Dispute Resolution Redundancies Trade Union Defender Sunday Work Fraud on Employee Secondments Fight against Illegal Work Deletion of imprisonment for Hindrance Offence Simplification and Harmonisation of Employees Savings Plans Informing Employees when the Company is Sold 1 / L_LIVE_EMEA1: v1

3 Introduction This summer, 2 major laws in France : The Macron law : very disputed in the media. Melting pot of various subjects to create growth (not only employment) Idea : more flexibility The Rebsamen law : Simplification on employee representatives Easier more flexible 2 / L_LIVE_EMEA1: v1

4 What it might have been but has been cancelled Damages Headcount of the Length of service of the employee company Less than 2 years Between 2 and 10 years From 10 years Less than 20 employees 3 months max 2 to 6 months 2 to 12 months Between 20 and 299 employees 4 months max 4 to 10 months 4 to 20 months Above 300 employees 4 months max 6 to 12 months 6 to 27 months 3 / L_LIVE_EMEA1: v1

5 The Rebsamen Law

6 Unique Delegation of Employee Representatives 5 / L_LIVE_EMEA1: v1

7 More flexibility / easier to manage New threshold: 300 employees (vs 200) Regroup 3 institutions: Works Council, Staff Delegates and Health & Safety Committee (CHSCT) Option recommended : setting up decided by the employer, after consultation of current employee representatives If several locations: one UDER per location Unique Delegation of Employees Representatives (UDER), up to 300 employees, integrating the Health & Safety Committee (CHSCT) Elections similar to Works Council elections Possibility to set it up within an Economic and Social Entity (UES) One meeting every 2 months Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 6 // L_LIVE_EMEA1: v1

8 . Very significant progress : one body to manage (vs 3), less elected members (protected against dismissal) Less hours given to them Less meetings and a simplification/rationalisation on what and how they should be informed and consulted (set timelines for them to give an opinion, etc.) Same timelines Meetings should now be held once every 2 months Possible visioconferenced meetings Unique Delegation of Employees Representatives (UDER), up to 300 employees, integrating the Health & Safety Committee (CHSCT) Only one agenda is fixed for the meeting. Only one opinion to be gathered (as well as a single expertise where applicable) Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 7 // L_LIVE_EMEA1: v1

9 The main subjects on which they now should yearly be informed and consulted are now regrouped around 3 blocks : Strategic orientation Economic and financial situation Employment conditions and evolution The delegation time off is 13 hours per month (vs 20) for tenure employees. The UDER benefits from a specific budget: roughly 0,2 % of the global salaries ( masse salariale ) for functioning + a possible budget for social and cultural activities (depend on what already exists in the companies) Unique Delegation of Employees Representatives (UDER), up to 300 employees, integrating the Health & Safety Committee (CHSCT) Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 8 // L_LIVE_EMEA1: v1

10 By unilateral decision of the employer Following steady decrease in number of employees Termination of UDER No more authorisation needed for administration Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 9 // L_LIVE_EMEA1: v1

11 Common Institution (more than 300 employees) 10 / L_LIVE_EMEA1: v1

12 Applies to companies with more than 300 employees 3 institutions, 4 possibilities: Staff Delegates + Works Council Works Council + HSC Staff Delegates + HSC Works Council + Staff Delegates + HSC Regrouping employee representatives Set up by a collective agreement When the constitution or the renewing of Works Council is planned Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 11 // L_LIVE_EMEA1: v1

13 Modernisation of Meetings with Employees Representatives 12 / L_LIVE_EMEA1: v1

14 Possibility of a common meeting of the different institutions on the same topic Reduction of number of Works Council meetings: now every 2 months (vs 1 month) Visioconference facilitated: Agreement between employers and employee representatives Otherwise, 3 meetings per year Joint meetings Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 13 // L_LIVE_EMEA1: v1

15 Information / Consultation of Works Council 14 / L_LIVE_EMEA1: v1

16 Before: 17 obligations for annual information / consultation Now: 3 large meetings per year. The Works Council will be consulted once a year on 3 big blocks : 1. Strategic orientation Simplification of regular informationconsultation of Works Council 2. Economic and financial situation 3. Social policy, work and employment conditions Possibility to adapt these modalities through a collective agreement Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 15 // L_LIVE_EMEA1: v1

17 Health & Safety Committee 16 / L_LIVE_EMEA1: v1

18 CHSCT (Health and Safety Committee) can be integrated in UDER All branches belonging to a company with at least 50 employees must be covered by a CHSCT If a company has several locations with less than 50 employees, the CHSCT should be set up in each of these locations CHSCT Duration of mandate: from 2 to 4 years Obligation to set out internal rules Consultation timing: Sufficient time set by agreement Otherwise, 15 days minimum Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 17 // L_LIVE_EMEA1: v1

19 Mandatory Collective Negotiations 18 / L_LIVE_EMEA1: v1

20 Before: 12 mandatory subjects for negotiations Now: 3 main themes: 1. Remuneration, duration of work, distribution of added value Simplified mandatory collective negotiations 2. Professional equality 3. Management of employees and careers Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 19 // L_LIVE_EMEA1: v1

21 Collective Agreements with Staff Representatives 20 / L_LIVE_EMEA1: v1

22 Principle : Collective Agreement are signed with Unions Purpose : Facilitate negotiations and collective agreements at company s level : With the Works Council or ad hoc mandated employees Negotiations with Staff Representatives Subject to referendum or Validation Commission (of CBA s) Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 21 // L_LIVE_EMEA1: v1

23 Fixed-Term Contracts 22 / L_LIVE_EMEA1: v1

24 Now: 2 renewals possible - Maximum applicable duration takes the renewal into account Fixed-term contract can be renewed twice - Impossible to go beyond the maximum duration of specific employment requirement (generally 18 or 24 months) Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 23 // L_LIVE_EMEA1: v1

25 Dismissal for Physical Unfitness 24 / L_LIVE_EMEA1: v1

26 Before the law: Obligation for the employer to look for redeployment even for an employee declared fully unfit by the Works Doctor. If there are no positions available or if the employee refuses: dismissal for unfitness Now: Termination of the employment contract (immediate, without redeployment research) if: Impossible redeployment Special indication in Works Doctor s opinion that keeping the employee within the company would be deeply harmful The employer can only skip redeployment research if the Works Doctor s opinion is explicit Simmons & Simmons LLP Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities. 25 // L_LIVE_EMEA1: v1

27 The Macron Law

28 Employment Tribunal Procedure / Alternative Dispute Resolution 27 / L_LIVE_EMEA1: v1

29 Conciliation and Orientation Board: Increased powers Incentive to use participatory process and mediation Possibility to send the case before one of three benches: classic, restricted or deciding New procedure Possibility to judge the case, if one of the parties does not attend the hearing without good reason Possibility to send the case directly before the deciding bench, presided by a professional judge Purpose : hopefully, quicker and better managed procedure 28 / L_LIVE_EMEA1: v1

30 Redundancies 29 / L_LIVE_EMEA1: v1

31 Order of dismissals: Scope may now be more restricted than the company to apply criteria/order of dismissals (unilateral document or common agreement) i.e. specific site Restriction of redeployment obligation to the national territory Redundancies International redeployment only at employee s request 30 / L_LIVE_EMEA1: v1

32 Sunday Work 31 / L_LIVE_EMEA1: v1

33 For retail 4 types of zones: International tourist zones Tourist zones Trade zones Stations Sunday work Possible opening on 12 Sundays per year, following authorisation from the mayor Collective branch agreements, group agreements or company agreements are mandatory With salary compensation or rest, measures to balance professional and private life, etc. 32 / L_LIVE_EMEA1: v1

34 Fraud on Employee Secondments 33 / L_LIVE_EMEA1: v1

35 Suspension of the service by the Works Administration in the following cases: Breach of mandatory rules concerning daily and weekly rest, maximum duration of work, minimum wage Work conditions and housing not compatible with human dignity No presentation of documents written in French showing the respect of mandatory rules Intentional communication of false information to the Works Inspector New provision secondments Procedure: Works Inspector is able to send a formal demand to stop the violation of mandatory rules Otherwise, a suspension of the service for 1 month Possibility of a penalty fine, on the basis of a report from the Works Inspector: maximum 10,000 per seconded employee Possibility to contest the suspension of the service before the Administrative Tribunal Limitation period of action by Administration: 2 years 34 / L_LIVE_EMEA1: v1

36 Hindrance Offence 35 / L_LIVE_EMEA1: v1

37 No more jail sentence in case of hindrance to functioning Hindrance offence Maximum fines increased : from 3,750 to 7,500 (from 18,750 to 37,500 for companies) 36 / L_LIVE_EMEA1: v1

38 Profit-sharing plans 37 / L_LIVE_EMEA1: v1

39 A portion of profits can be distributed to staff if the company has made a profit during the fiscal year if such profit exceeds 5 % of the company s net asset value Possible set-up of a plan within an economic and social entity Profit-sharing plans Agreement with the Works Council or directly with the staff Favourable social security and tax regimes 38 / L_LIVE_EMEA1: v1

40 Had lost its interest Easier to distribute Less taxes on share plans At the end of the vesting period : start of a conservation period Vesting and acquisition periods are reduced : 1 year each (2 years in total) Flexibility of conditions of attribution of free shares Employer s contribution decrease : from 30% to 20% Payment of this contribution: on the day of the exercise by the employee 39 / L_LIVE_EMEA1: v1

41 Informing Employees on company sale 40 / L_LIVE_EMEA1: v1

42 Before After Sale of companies < 250 employees Information obligation applicable to any type of sales, including majority shareholding, subject to exceptions (spouse, inheritance, bankruptcy ) Sanction: in case of lack of information of employees, the sale is void Disposal (not shares) Applicable only in cases of selling companies with less than 250 employees Notification to employees to buy Sanction: civil fine granted by the tribunal, on prosecutor s request. Fine limited to 2% of the sale 41 / L_LIVE_EMEA1: v1

43 And also, hot topics are still : - Working time - Moral harassment - Dismissal Etc. 42 / L_LIVE_EMEA1: v1

44 Thank you for your attention Laurence Renard This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmons-simmons.com/legalresp. Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address.