Legislation is seen as the primary basis of French law, and it follows what is known as hiérarchie des normes – or, the hierarchy of norms.
For employment law purposes, said hierarchy of norms would be broken down as follows:
- First tier: legislative texts, including the Labour Code, which addresses each right in detail, and under whose law a collective bargaining framework is provided.
- Second tier: the convention collective, adapted to the specificities of each trade, profession or geographical area.
- Third tier: the company agreements, Unilateral Employer Decisions (DUE) and custom law, which are bound by the legal provisions set out in the higher tiers.
- Fourth (and final) tier: the contract of employment, which forms the basis of the individual employment relationship, and is bound by the legal provisions set out in the higher tiers.
Note that each legal norm under the first tier works with the legal hierarchy only if it respects or improves the preceding norm(s). For this reason, care should be taken with amended and/or superseded legal texts that can be found online or in accords de branche (industry-wide agreements).
Collective bargaining: the rules
French law offers space for collective bargaining to not only regulate, but improve working conditions and employment relations on individual and collective bases.
Collective bargaining is made possible by the article L2251-1 of the Labour Code, which encompasses the ‘principe de faveur’ (principle of favour). It allows an exception to the hierarchy of norms in that lower-standard texts may replace certain legal provisions, but only if they are more favourable to employees.
The role of the El Khomri Law
In 2016, the controversial El Khomri law (named after the French Minister of Labour, Myriam El Khomri), amended the Labour Code in a way that allows the above mentioned inversion of the hierarchy of norms and encourages collective bargaining.
The new standards consist of:
- Ordre public, a set of national rules which define a core group of protected, non-negotiable employee rights (such as minimum wage, sex discrimination, and medical insurance).
- Champ de la négociation collective, or ‘scope of collective bargaining’ among which certain rules can be freely determined within branches, companies, and workplaces.
- Dispositions supplétives, or ‘subsidiary default rules’ which apply in cases where the company or branch fails to negotiate rules under the scope of collective bargaining.
As an example: under the ordre public, an hour worked beyond the legal minimum working time is classed as overtime, leading to an entitlement of payment or equivalent compensatory rest.
But while this is an imperative legal provision, no actual rate is specified. A company or branch agreement may therefore determine this rate (of no less than 10%) under the scope of collective bargaining.
Meanwhile, the subsidiary default rules give an automatic rate figure of 25%. This means that it is in companies’ strong interests to negotiate favourable agreements that use the minimum rate of 10% as a base, rather than the subsidiary default of 25%.
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