The new changes are not drastically different from current law but manage to a make a complex system even more complex.
After months of tense discussions in the French Parliament, the Law for the Growth, the Activity, and the Equality of Economic Opportunities (Law Macron), which was to simplify and make the French system more flexible, has been voted into law. The law, which was voted in on 10 July and published in the legal Gazette on 7 August, adjusts several aspects of the French labor law.
In this LawFlash, we will focus on the provisions that concern work on Sundays and in evenings.
The French labor code sets out two principles:
However, because of social and economic needs, some derogation to these principles has been granted. For example, establishments that cannot close because of the constraints of production, activity, or public need can give the weekly rest on another day by rotation. Such derogation does not require a preliminary authorization from the government.
The same leniency applies to the food trades and tourist or hot springs areas.
Employers within the food trades can close their doors on Sundays at 1:00 p.m. Employers within tourist or hot springs areas can also give the weekly rest by rotation when they fulfill certain conditions and there is a list of these areas established by the Prefects on proposition of the city boards.
Finally, in certain urban areas of more than 1 million inhabitants, the weekly rest can also be given by rotation in establishments that offer goods and services in a “perimeter of use of exceptional consummation” characterized by habits of consumption on Sundays, the importance of the clientele, and the distance of the clients from the perimeter. The list of such zones is set up by the regional Prefect, which also awards the authorization to open if a collective bargaining agreement has been signed with the company trade unions or, in the absence of such an agreement, after consulting with the employees’ representatives and establishing a referendum among the employees concerned. The authorizations are given for five years.
On top of this already very complex system, the mayors of the cities may authorize five times a year the opening of retail trades on Sunday. Employees have a right to a rest equivalent during these instances and are generally paid at a higher rate.
The Law Macron sets up four new categories of zone where work on Sundays will be possible for retail and services businesses:
Companies located in these geographic perimeters must have entered into a collective bargaining agreement with their trade unions that allows work on Sundays. The agreement should include salary counterparts; engagements in terms of hiring of employees; measures in favor of certain categories of persons, such as disabled persons; measures to facilitate the balance between personal life and professional life; and counterparts to compensate the costs of childcare.
Companies that have fewer than 11 employees could also benefit from the new system without entering into a collective bargaining agreement provided that an employer has obtained the majority of its employees’ approval and its legal counterparts’ approval to work on Sundays.
In any case, work on Sundays should be voluntary.
Outside of the above mentioned zones, work on Sundays remains possible by an express decision of the mayor of the city where the company requiring such authorization is located. The number of Sundays that employees may work has increased from 5 to 12.
The Law Macron reform is more of a reorganization of the existing legal system than a new one.
The French Labor Code defines “night work” as any work performed between 9:00 p.m. and 6:00 a.m. It must be an exception and justified by necessity. An employee must enter into a collective bargaining agreement with his or her employer to be eligible for night work. When this is not possible, an employer must obtain an express authorization from the labor inspector. The collective bargaining agreement must include counterparts to the benefit of the night workers (such as financial increases, rest periods, working conditions, transportation, balance between personal life and professional life, etc.).
The “night work” in a collective bargaining agreement may also be defined (with the labor inspector’s authorization after consultation with staff representatives) as any period of nine consecutive hours between 9:00 p.m. and 7:00 a.m. that should always include the hours between 12:00 a.m. and 5:00 a.m.
The Law Macron has set up the evening work between 9:00 p.m. and 12:00 a.m. to allow some retail goods and services businesses to open in international tourist areas.
Indeed, some businesses that used to work until midnight were obliged by court decisions to close after 9:00 p.m. after trade unions brought legal claims. The Law Macron legally authorizes such businesses to remain open until midnight.
However, a collective bargaining agreement is still necessary, and it remains unclear whether the trade unions that have brought legal actions against evening work will be open to entering into collective bargaining agreements on the same subject.
Work in the evening will have to be voluntary, and collective bargaining agreements should include measures of compensation regarding the cost of transportation for employees and the balance between personal life and professional life.
Outside of the international tourist zones, work in the evening will be considered night work with all the restrictions mentioned above.
Although more flexibility was expected, at the end of the day, the Law Macron offers little changes to current law, largely due to Parliamentary review of the draft law and the weight of some trade unions’ lobbying efforts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: