- response to COVID-19
- 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 agreement 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 the size of the company. Once the agreement is signed, employees have to give their opinion. If the employee agrees, the provisions of the agreement shall automatically replace any contrary and incompatible clauses in the employment contract, including those relating to remuneration, working hours and professional or geographical mobility within the company. 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 five 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
Employer or employee 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 to foster internal flexibility measures in order to safeguard employment. Since its entry into force, the instrument is considered to be a success: on 1 June 2019 the government declared that 170 agreements had been signed, which is much higher that the previous types of agreements that have been replaced. An analysis of agreements signed up to end of March 2019 was carried out by a consulting firm, covering around 60 agreements. The latter first noticed that the rate of signature is accelerating: 60% of collective performance agreements were signed in 2019 compared to 38% in 2018. This trend is clearly expected to continue. Out of the agreements consideres, 37% of the concerned companies with fewer than 50 employees, 27% between 50 and 250 employees and 23% over 250 and under 1,000 employees. Although agreements had been signed in all sectors, several were over-represented, such as in the trade, transport, hotel/restaurant (43%) and industry (26%). The Île-de-France was the top regions concerned, ahead of Nord-Pas-de-Calais and Provence Alpes Côte d'Azur. Moreover, all the trade unions signed such agreement : even the CGT signed 69% of them where it is representative, the CFTC signed 100%, followed by the CFDT (95%). As for the reasons for these agreements, 32% concern working time, 26% concern remuneration and 23% combine both working time and remuneration. For 76% of those agreements, indefinite duration is planned.
Against this background, it is likely to assume that the COVID-crisis might accelerate the use of such agreements: many specialised law firms present this tool as a relevant one to be used by companies to better cope with difficulties they face.
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. As there are no specific and restrictive conditions to be met while concluding such agreements, companies benefit from a large room for manoeuvre to use them in very different contexts. They can strengthen competitiveness in an economically strained context but can also allow to modify some company social policies without such difficult economic context: harmonising the collective status of employees, developing geographical and professional mobility in order to more easily adapt the company to its environment, etc.
In companies' view, this instrument also benefits from a satisfying legal reference, compared to previous similar tools.
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 which might allow circumventing regulations applied to collective redundancies. In addition, due to the possible impacts of such agreements on 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 from the majority of 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. If it's not the case, signatory unions might be fragilised as this was the case considering the agreement concluded in October 2018 by SFR Distribution (telecoms and media): the professional elections held in the spring of 2019 saw a collapse in the scores of the trade unions that had signed up in October 2018.