- Fostering mobility
- Social Dialogue
- Wage flexibility
- Working time flexibility
Accord de performance collective
Collective performance agreement
A new kind of company collective agreement was introduced by the 2017 reform of the Labour Code (Ordinance 2017-1385 of 22 September 2017 and Law of 29 March 2018). This instrument is in force since 1 January 2018. It covers all private companies, whatever their size, and replaces the former internal mobility agreements and agreements to maintain employment.
This is an internal flexible instrument that allows employers to negotiate with unions or other employee representatives at company level to organise working time, wages as well as the terms and conditions for the internal professional and geographical mobility of employees ‘to meet the needs related to the operation of the company or to safeguard or develop employment’. This means that this kind of collective agreements may also be concluded without any specific economic difficulties faced by the company.
Article L2254-2 of the labour code allows the employer to start negotiations on different topics as part of collective organisational measures which do not involve redundancies:
adjusting working time, how it is organised and how it is distributed;
adjusting wages but in compliance with the minimum wage, defined by law or sectoral collective agreements;
establishing the terms and conditions for the internal mobility of employees.
The content of the agreement is completely free and left in the hands of the unions and the employer. The only obligation resulting from such an agreement is to provide a preamble defining the objectives pursued. To be valid the agreement has to be signed by one or more unions representing at least 50% of the votes cast at the last professional elections. Different and special provisions apply for companies without union representatives, depending on companies' size. Once the agreement is signed, employees have to give their opinion. If the employee agrees, the terms and conditions of the collective agreement that are contrary to his/her employment contract are suspended for the duration of the agreement. In case of refusal, the employee will be individually dismissed on a so called ‘sui generis’ ground, which means the ground for dismissal is not economic and that the employee will not benefit from legal provisions applicable in case of dismissal on economic grounds. It also means that the employee cannot challenge the grounds for dismissal before the labour court. However, in this case, the employer is to make an additional contribution to the employee personal training account (CPF). The legal procedure the employer has to comply with is the one applicable to dismissals on personal grounds. The labour code does not plan the duration of such company agreements, ordinary rules are therefore to be applied (fixed term up to 5 years as a matter of principle, but possibly open ended). Like any other company collective agreement, once concluded, the collective performance agreements have to be forwarded to the labour administration.
- No specific funding required
Employers' or employees' organisations
This new instrument has been passed to address the low effectiveness of the existing specific collective agreements, about maintaining employment and internal mobility. The general idea is therefore to foster internal flexibility measures in order to safeguard employment. This measure is very new ;therefore it is impossible to assess whether or not it will be successful.
This new instrument might help to foster flexicurity agreements at company level and thus to provide companies with the flexibility they need while safeguarding jobs.
It is worth highlighting that this instrument raises a lot of debates, especially as the scope of such agreements is very wide and provides employers with enlarged possibilities to implement internal flexibility measures. In particular, no specific economic circumstances are required to conclude such an agreement. In addition, due to the possible impacts of such agreements on the employment conditions, for example wage decrease or increase in working time, it might not be easy for the employer to get the support and signature of majority unions (when they exist at company level) unless the employer is able to propose genuine guarantees in return for the flexibility provided, for instance some clear commitments to maintain employment.