Controversy over 39-hour week in hotels and restaurants sector
On 17 October 2006, the Supreme Administrative Court cancelled the measures granting a 39-hour week in the hotels, restaurants and catering sector. This decision received a mixed reaction among the social partners. However, on 25 October, the parliament temporarily restored these measures until a new collective agreement is signed in 2007.
In the context of the national reduction of working hours, on 13 July 2004, employer representatives and three trade unions signed a collective agreement which fixed weekly working time at 39 hours in the hotels, restaurants and catering (HORECA) sector. The three trade unions involved were: the General Confederation of Labour – Force ouvrière (Confédération générale du travail – Force ouvrière, CGT-FO); the French Christian Workers’ Confederation (Confédération française des travailleurs chrétiens, CFTC); and the French Confederation of Professional and Managerial Staff – General Confederation of Professional and Managerial Staff (Confédération française de l’encadrement – Confédération générale des cadres, CFE-CGC).
On 30 December 2004, a ministerial decree extended the agreement to all companies in the sector and an implementing decree validated the ‘equivalence system’. The 39-hour working week in this sector thus became equivalent to the legal standard of a 35-hour working week (FR9806113F). Some 800,000 employees work in the sector and there are 180,000 establishments, almost all of which have fewer than 10 employees.
However, during 2006, these measures were reviewed by the Supreme Administrative Court (Conseil d’État) and the parliament.
Special working hours in HORECA sector
In the general rules governing the 35-hour working week (FR0001137F), 35 hours are a threshold for calculating overtime, which is paid at a higher rate or, on certain conditions, as compensatory time off work. Overtime is subject to the following limits:
- the maximum duration authorised by law, namely 10 hours a day and 48 hours a week, or an average of 44 hours a week over a 12-week period;
- an annual quota fixed by collective agreement or, in its absence, by law at 220 hours a year.
The HORECA agreement does not apply these general rules; it stipulates that the four-hour difference between the standard 35-hour working week and the 39-hour week agreed in this sector is not paid as overtime. By way of compensation – in terms of equivalence – the agreement provides for the following benefits:
- an additional half day’s leave per month of actual time worked – in effect, a sixth week of annual leave, which can either be taken as such or replaced by extra pay. However, the time taken is deducted from other types of leave for family reasons, for example marriage, birth, death or sick children;
- two extra public holidays off work;
- negotiation of a time-savings account.
Once the 39 hours are reached, overtime is paid at a rate of plus 15% for the first four extra hours, plus 25% for the following four hours and plus 50% for the rest. The maximum overtime quota is set at 180 hours a year or 45 hours per quarter for seasonal workers. The maximum weekly working time is set at 52 hours, with an average of 48 hours over a 12-week period.
Appeal to Supreme Administrative Court
Following the above-mentioned ministerial decree, the Service Workers’ Federation (CFDT-Services), affiliated to the French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) – which did not sign the previous agreement – immediately lodged an appeal against ‘excessive power’ to the Supreme Administrative Court.
On 17 October 2006, the Supreme Administrative Court declared that the decree on the equivalence system was ‘considered to have never been applied’ on the grounds that it extended an equivalence system that was legally reserved for jobs and positions ‘involving periods of inactivity’ to all staff in the sector. It thus has abolished the 39-hour working week in the HORECA sector.
The Supreme Administrative Court also rejected the employers’ request that the effects of this decision be postponed, which means that the overtime bonus for all working time between 35 and 39 hours a week will have to be back paid from the time of the publication of the decree to the time of the decision of the Supreme Administrative Court.
In the same ruling, the Supreme Administrative Court also annulled the decree transposing the European Directive on working time (Council Directive 2003/88/EC) in freight transport by road, on the grounds that the decree adopted by the Council of Ministers had not been submitted to the Supreme Administrative Court for prior opinion. Such a consultation is compulsory in the regulatory process in France. Thus, in one decision, the court ruled on the only two sectors of the economy which had a working time regulation exceeding the standard 35-hour working week.
Reactions of social partners
In a sector where the trade unions claim that weekly working time often reaches 50 or 60 hours, this represents a crucial issue. The reactions have pointed to major disagreements among the social partners.
The CFDT and the General Confederation of Labour (Confédération générale du travail, CGT) are very pleased about a ‘victory’ that entails the following results:
- putting an end to the dispensation from the legal standards governing the 35-hour week;
- granting the extra pay due to employees for overtime.
However, CGT-FO, which signed the 2004 agreement, is concerned about the loss of the sixth week of leave and the probable deterioration of working conditions. Meanwhile, the employers have denounced the effects of the loss of employees’ purchasing power in relation to the sixth week of leave. The Union of Hotel Industry Occupations (Union des Métiers et des Industries de l’Hôtellerie, UMIH) has calculated the financial advantages for employees of a sixth week of leave that is not taken but is paid in compensation.
Court decision overruled
Notwithstanding the Supreme Administrative Court’s decision, on 25 October 2006, when examining the 2007 social security budget, the parliament voted in favour of restoring the 39-hour working week in the HORECA sector for the intervening period before the new collective agreement, which is due to be signed in 2007.
François Michon, Institute for Economic and Social Research (IRES)