Precautions to be taken during the performance of an employee’s employment contract under the SYNTEC agreement.
The “SYNTEC” agreement includes provisions relating to the implementation of fixed-rate day agreements. Employers covered by this agreement must refer to the April 1, 2014 rider and not to the agreement dated June 22, 1999 relating to working hours, which was ruled to be non-compliant by the Court of Cassation (Cass. Soc. April 24, 2013, n°11-28.398) (see ____).
Once the package has been set up and our three recommendations have been complied with (___), we need to monitor the implementation of this package agreement during the performance of the employment contract.
The main difficulty and danger in implementing such agreements lies in managing and monitoring employee workloads.
Even if employees are autonomous, it is important to ensure that maximum working hours are respected.
1st precaution: set up a workload monitoring and control document
Under the terms of the SYNTEC collective bargaining agreement, the employer must set up objective, reliable and contradictory monitoring procedures.
It is up to the employer to draw up a document showing the number and date of days worked by the employee, as well as the positioning and classification of days not worked as weekly rest days, paid vacations, etc.
In practice, this document takes the form of a table.
This follow-up is drawn up by the employee, who must complete it under the employer’s supervision.
Wherever possible, it is preferable to ensure that the employer receives this table on a monthly basis, to ensure effective monitoring of the employee’s working hours.
This monitoring is carried out in the employee’s interest, to safeguard his or her health.
failure to comply with this obligation may result in the nullity of the fixed-rate day agreement.
The employee could then legitimately claim overtime pay before the Conseil de Prud’hommes, which could prove particularly costly for the company (see below).
2nd precaution: setting up annual interviews with employees covered by a fixed-day agreement
The SYNTEC agreement provides for a minimum of two meetings per year with the employee subject to a fixed-duration agreement, in addition to a specific individual meeting in the event of unusual difficulties.
In particular, this meeting must address the employee’s individual workload, the organization of work within the company, the work-life balance, and the employee’s remuneration.
It also involves taking stock of how the employee’s work is organized, his individual workload, and so on.
The employee and his/her manager take advantage of this meeting to take the necessary steps to prevent and resolve any difficulties. For example, if during this meeting the employee points out a difficulty linked to workload, a solution should quickly be proposed by the employer (workload adjustment, follow-up, etc.).
A report on these annual reviews must be drawn up, containing any solutions and measures taken to address any difficulties raised by the employee during the review.
3rd precaution: guaranteeing the employee’s right to rest and disconnection
The SYNTEC Agreement expressly stipulates the rest periods that must be respected by employees on fixed-term contracts, i.e. a minimum of 11 consecutive hours and a minimum weekly rest period of 35 consecutive hours (24 hours + 11 hours).
Compliance with these minimum times implies an obligation to disconnect from remote communication tools.
It is up to the employer to set up a monitoring tool to ensure that the employee’s daily and weekly rest periods are respected.
4th precaution: monitoring workload and working day amplitude, and the employee’s right to be alerted
The employer of an employee with a fixed number of days must regularly monitor the organization of the employee’s work, his workload and the amplitude of his working day.
In the event of unusual difficulties concerning the organization of their workload, employees have the option of alerting their employer in writing.
The latter must then receive the employee within eight days and set out in writing the measures that will be put in place to ensure that the difficulty encountered by the employee is dealt with effectively. These measures must be the subject of a written report and follow-up.
This appointment can also be made at the employer’s initiative, if the latter becomes aware that the employee’s work organization or workload is leading to abnormal situations.
Once a year, the employer informs employee representatives of the number of alerts issued by employees, and the measures taken to deal with them.
To meet your obligations in this area, it’s best to set up a real process within your company.
DESRUMAUX AVOCATS can help you with this process and the associated support.
5th precaution: remuneration of employees on fixed-term contracts in the SYNTEC agreement
The SYNTEC collective bargaining agreement provides for annual compensation of at least 120% of the contractual minimum for the employee’s category.
Thus, each year, the employer must ensure that all employees on a fixed-day contract receive compensation at least equal to 120% of the collective bargaining minimum, depending on their coefficient.
As a reminder, in application of the SYNTEC agreement, only managerial staff with at least position 3 in the classification grid provided for in the agreement can benefit from fixed-day agreements, which is not the case for vacation bonuses, for example.
Under the terms of the agreement, managers in position 3.1 must receive a minimum gross salary of €3,490.10.
If these managers are subject to a fixed-day contract, their remuneration must be at least €4,188.12 (€3,490.10 * 1.2 = €4,188.12).
The SYNTEC agreement is particularly favorable to employees on this point, and particular care must be taken, as failure to comply with these provisions may result in the flat-rate agreement being declared null and void, with all the attendant consequences.
What are the risks if an employee’s fixed-term workweek agreement is declared null and void?
If a fixed-rate agreement is declared null and void, then, as mentioned above, the employee can claim payment for all hours worked in excess of 35 hours, which, in the case of employees on a fixed-rate day contract, can sometimes represent a considerable number of hours, and an equally significant back-pay for the employer.
The employer may also be ordered to pay compensation for undeclared work, amounting to six months’ salary.
Of course, this reminder of overtime will be possible subject to proof of the hours actually worked (shared proof in overtime matters).
Is it possible to adapt the rules contained in the SYNTEC agreement to my company?
Since September 2017, new rules have come into force for collective bargaining.
The main aim of these new provisions was to give the company agreement genuine primacy over the branch agreement.
As a result, since these texts came into force, company agreements have generally taken precedence over branch agreements, except in certain areas in which company agreements cannot override branch agreements, such as minimum wages, professional equality between men and women, and supplementary guarantees.
In other areas, however, company agreements take precedence.
It is therefore perfectly possible for your company to conclude a fixed-days agreement with executives whose position is lower than that covered by the SYNTEC agreement.
DESRUMAUX AVOCATS can also help you draw up and implement such an agreement in your company.
