What is meant by flexible working time arrangements?
Working time flexibility originates from the law dated 12 February 1999 implementing the national action plan for employment and the law dated 8 March 2002 revising the law of 12 February 1999, both of which were incorporated into the Labour Code in Articles L. 211-6 to L. 211-10.
The law dated 23 December 2016 concerning the organisation of working time and amending the Labour Code has just amended some of the provisions of the amended law dated 12 February 1999 cited above.
The reference period provisions of collective labour agreements, a subordinate agreement, an agreement on cross-industry social dialogue or other agreements at company level in force at the time of the entry into force of this law shall continue to apply until the expiry of the collective agreement or other agreement.
Where a collective bargaining agreement, a subordinate agreement or an agreement on cross-industry social dialogue in force at the time of the entry into force of this law does not contain any specific provision on a legal reference period or merely refers to ordinary law, the length of the reference period applicable until the expiry of the collective bargaining agreement or of the agreement may not exceed one month.
The purpose of the legal provisions on working time is to ensure both the proper functioning of companies and increased employment, and, in the same way, the protection of employees in terms of safety and health and good working conditions.
Our legislation distinguishes between two different systems of working time flexibility: the work organisation plan (WOP) and the flexitime system (HM).
While the WOP grants flexibility in work organisation mainly to the employer, the flexitime system has flexibility interests for both parties to the employment contract.
In both systems, the element of flexibility is the reference period. Let us go back to the principle of the normal maximum working time of eight hours per day and 40 hours per week for full-time work (unless the normal weekly working time of the company is lower, as when set by collective agreement).
In the context of flexible working time, the law allows a company to determine a period during which the principle of eight hours a day and 40 hours a week is applied in a more flexible way. This period is called the reference period.
The WOP system is used by companies to modulate the weekly and daily working hours of their employees according to its needs, but within the legal limits.
A work organisation plan regulates the organisation of the work of the employees of the whole or parts of the company, which it sets out as necessary. Although it does not necessarily have to be specific, it must unequivocally indicate to all employees and their direct superiors the working hours applicable to them.
Employers wishing to operate with a WOP are required to draw up a work organisation plan covering at least one month for all reference periods of one month or more, at least five clear days before the start of the legal reference period (which may be up to four months), covering the company’s foreseeable business activity for the period of the work organisation plan.
For companies opting for a reference period of less than one month, the work organisation plan must last the same amount of time as the reference period.
If the reference period is covered by several successive work organisation plans, these must all be drawn up within the same period before the start of the work organisation plan in question.
As a result, the daily and weekly working time of each employee subject to the WOP may vary from reference period to reference period, from week to week, or, where applicable, from month to month.
Example:
Mr B is employed by company H. His employment contract specifies daily working time of eight hours and weekly working time of 40 hours. Mr B works from Monday to Friday.
As company H operates with a WOP over a reference period of four weeks, here is an example of a WOP over four weeks for Mr B:
Over the four-week reference period, Mr B will never work more than 10 hours a day. The plan keeps to the limit of 48 hours per week and on average, his working time is 40 hours per week, i.e. the weekly working time stipulated in his individual employment contract.
ATTENTION:Introducing a WOP may constitute a change of an essential element of the employment contract in a way that is unfavourable to an employee. The employer must therefore follow the procedure for revising the employment contract.
The work organisation plan must contain the following details:
the beginning and end of the reference period and the work organisation plan;
the normal working hours so that every employee knows how their work is organised, i.e. the working hours per day and per week and the beginning and end of the daily work;
days on which the company is closed, the legal and habitual public holidays and individual and/or collective holidays;
weekly rest period of 44 hours per week and, if applicable, compensatory leave due when work infringes on this rest period.
The WOP is null and void if it does not contain these items or if one of them is missing.
Any work organisation plan must be submitted in advance to the staff delegation or, failing that, to the employees concerned, no later than five days before the work organisation plan comes into force.
The work organisation plan must be communicated to all employees concerned by the most appropriate means within the time limit set.
In case of disagreement of the staff delegation or, failing that, of the employees concerned, documented by a negative and duly substantiated opinion concerning the work organisation plan, any dispute shall be submitted by the most diligent party to the Director of the Labour and Mines Inspectorate or that person’s delegate, who, within one month of the referral, shall try to find an agreement between the parties.
If the disagreement persists and is duly noted by the Director of the Labour Inspectorate and Mines or his delegate, the matter may be referred to the National Conciliation Office by the most diligent party.
Additional terms and conditions may be added to the work organisation plan – if young workers are concerned, then a chapter must be prepared specifically for them – and its duration may be modified, all by mutual agreement between the company and the staff delegation. If there is no staff delegation, the employees concerned must give their agreement. If there is no staff delegation, the employees concerned must give their agreement.
The procedure provided for in the two preceding paragraphs may not result in the setting of a duration of the work organisation plan of less than one month, unless the reference period is less than one month, in which case the duration of the work organisation plan must correspond to the duration of the reference period.
Please note:
Statutory reference periods in a WOP (outside a collective agreement) of more than one month up to a maximum of four months entitle employees to additional leave:
If a WOP is established for a reference period of between more than one month and less than two months, additional leave of one and one-half days per year is due to employees who are working under the WOP in question.
If a WOP is established for a reference period of between more than two months and less than three months, additional leave of three days per year is due to employees who are working under the WOP in question.
If a WOP is established for a reference period of between more than three months and less than four months, additional leave of three and one-half days per year is due to employees who are working under the WOP in question.
If necessary, these days of leave are prorated, especially for part-time employees.
Note: Before the entry into force of the law dated 23 December 2016, overtime was governed by Article L. 211-7, paragraph 4. This provided that work performed beyond the limits set by the work organisation plan for the day, week or entire reference period is considered as overtime work, except in the case of unforeseeable events or force majeure. Force majeure is defined as an unforeseeable and insurmountable event preventing a person or persons from fulfilling their obligations. As a consequence of this, every time an employer had to change the WOP, he invoked either an unforeseeable event or a case of force majeure to exempt himself from the obligation to recognise and pay the additional hours as overtime. This is why the law dated 23 December 2016 remedied this situation, which was prejudicial to employees.
The law dated 23 December 2016 provides that within the framework of each WOP and in compliance with maximum working times – which cannot exceed ten hours per day, nor 48 hours per week – the hours of work exceeding the percentages stated below for each month are to be considered overtime:
12.5% of the normal monthly working time laid down by law or by collective labour agreement where a reference period is applied lasting between more than one month and a maximum of three months;
10% of the normal monthly working time laid down by law or by collective labour agreement where a reference period is applied lasting between more than 3 months and a maximum of 4 months.
Within the maximum working time, which may not exceed ten hours per day or 48 hours per week, work performed beyond the limits set by the work organisation plan for the day, the week or the entire work organisation plan shall not be considered as overtime, if during the application of a work organisation plan it has to be changed at the request of the employer and if this change is announced to the employee concerned with a notice period of at least three days prior to the event.
If the change is initiated by the employer less than three days before the event and if this change does not lead to an increase in the originally planned working hours but merely to a change in the schedule, the working hours exceeding the original schedule by more than two hours shall be paid at the rate of 1.2 hours for one hour worked instead of 1.0 for the first two.
These hours are considered as overtime for tax and social security purposes.
An employee affected by a change in the WOP at the initiative of the employer less than three days before the event may request not to work such overtime for compelling and substantiated reasons, provided that the change is not substantiated by a case of force majeure linked to:
cleaning, repair and conservation work necessary for the regular continuation of the operation of the business or for work other than production work, on which the regular resumption of operations for the following day depends;
work necessary to prevent raw materials or products going bad.
In the event of disagreement expressed by the employer, the delegation or the employee concerned may refer the matter to the Labour and Mines Inspectorate for a written opinion on the compelling and substantiated nature of the reasons given by the employee.
The Labour and Mines Inspectorate shall give its opinion within two weeks of the referral.
For overtime at the end of the reference period, overtime resulting from failure to observe the deadline of at least three days before the event or from exceeding the limits of respectively 12.5% and 10% of the normal legal duration or that provided for under the collective agreement according to the duration of the reference period, the time when compensation shall occur is in principle set according to the employee’s wish, unless the needs of the service and the substantiated wishes of other employees in the company are opposed to it. In this case, overtime not yet paid at the end of the calendar year may be carried over exceptionally until 31 March of the following year.
What are the rules protecting night workers under a WOP?
The law defines a night worker as:
any worker who normally performs at least three hours of his daily working time during the night period;
any worker who is likely to perform a certain part of his annual working time during the night period. This minimum part of his annual working time must be set out in a collective agreement or by an agreement concluded between the social partners at national or sector level, but it must be greater than one quarter of the annual working hours worked by the employee concerned.
Certain limits must be adhered to in the case of flexible working time to protect night workers:
the total normal working time of night workers may not exceed an average of eight hours per 24-hour period over a seven-day period;
night workers in jobs involving special risks or significant physical or mental strain may not work more than eight hours in any 24-hour period.
The following are considered to be jobs involving particular risks or significant physical or mental strain:
activities which aggravate reduced vigilance in a night worker, such as work involving the use of neurotoxic substances, the use of volatile organic substances and products containing them, tasks performed under conditions which increase monotony and lead to loss of alertness, tasks which require sustained attention, or which are repetitive or not very varied;
activities that require an increase in the biological activation of the night worker, such as work requiring significant effort and causing a heavy workload and work performed in an excessively hot or cold environment.
In addition, night workers are required to undergo a medical examination prior to employment, followed by periodic medical examinations.
If they suffer from recognised health problems linked to the fact that they perform night work, they are reassigned, as far as possible, to day work for which they are fit.
What are the rules protecting part-time workers under a WOP?
Remember that part-time employees must work the hours that are required by their employer at a weekly working rate lower than that used in the company by virtue of the law and a collective bargaining agreement.
Just as for full-time staff, it is possible to introduce a reference period for part-time workers. In view of this flexibility situation, part-time employees can be called in to work beyond the daily and weekly limits stipulated in their work contracts.
The WOP sets out the precise rules for part-time employees.
The rules to be complied with are as follows:
Average weekly working time calculated over the reference period must not exceed the normal weekly working time laid down in the employment contract.
Example:
An employment contract specifies that a given employee works 20 hours/week. During the four-week reference period, this limit is made flexible, so that the employee may have to work:
24 hours during week 1 16 hours during week 2 18 hours during week 3 22 hours during week 4
In calculating average working time of four weeks, no more than the 20 hours weekly stipulated in the work contract may be included.
In our example, the average period is: (24 + 16 + 18 + 22): 4 = 20 hours/week.
As such, the limits provided for in the contract have been adhered to.
During the reference period, the employer can make the employee work up to 20% more than the daily and weekly work stipulated in the contract.
Accordingly, if a work contract indicates weekly working time of 20 hours, an employee can work up to 24 hours per week during the reference period.
ATTENTION: a clause in an employee’s part-time work contract can legitimately require a lower flexibility rate that is still higher than 20%. However, the limit is in all events comprised of full-time daily and weekly working times in the company, i.e. in most cases, eight hours per day and forty hours per week.
Example 1:
An employment contract specifies working time of 25 hours/week. Within a reference period, this limit can be exceeded by 20%.
This means that the maximum working period within the reference period is: 25 + (20% of 25) = 30 hours/week.
Example 2:
An employment contract provides for a working time of 20 hours/week and at the same time stipulates that the excess during the reference period may be 100%.
Employees who have signed this contract state that they are prepared to work up to 40 hours/week during the reference period.
The same rules of calculation apply to make daily working time more flexible.
As in general law, an employee cannot be forced to work overtime during the reference period. This means that an employee must agree to do so.
What are the rules protecting young workers that form part of the WOP?
As part of a WOP, the working time of young workers may be spread over a maximum reference period of four weeks if the collective agreement so provides, or, failing that, with the written authorisation of the Minister of Labour.
The reference period, if any, does not apply to hours of education or training, or to activities in the company as part of their training, in particular in the form of sandwich courses or with a view to increasing the number of hours that can be devoted to such work.
Moreover, a reference period may be introduced for young workers only in exceptional cases and where justified by objective reasons.
However, the maximum actual working time may in no case exceed nine hours per day, nor may it exceed the normal maximum working time applicable in the company by more than 10%, nor 44 hours per week.
The average weekly working time calculated over the reference period of four weeks may not exceed either 40 hours or the normal maximum weekly working time set by agreement.
In the case of part-time work, the maximum effective daily and weekly working time may not exceed the daily and weekly working time laid down in the employment contract by more than 10%.
While the legal reference period before the entry into force of the law dated 23 December 2016 was four weeks or one month, this law provides that the legal reference period may be up to four months if there is no collective agreement or if there is a collective or a subordinate agreement that do not include stipulations with regard to a reference period.
Note: The CSL is of the opinion that, by virtue of Article L. 162-12, paragraph 2 of the Labour Code, which provides that “the duration of work and its organisation (…)” must be governed by a collective agreement, it is unacceptable that, in the event that the parties to the collective agreement have decided not to introduce a reference period, an employer may nevertheless unilaterally introduce a legal reference period of up to four months. Such a provision is contrary to the contractual freedom of the parties. Therefore, according to the CSL, the only applicable regime in such a case is the legal regime provided for in Article L. 211-5 of the Labour Code, i.e. eight hours per day and 40 hours per week.
For technical or administrative reasons, the reference period may be expressed in calendar weeks or months.
Before introducing or changing a specific reference period, the head of the undertaking or his or her representative must first initiate the information and consultation procedure with regard to the staff delegation, or failing that, the employees concerned.
A decision to introduce or change a specific reference period shall apply at the earliest one month after the procedure for informing and consulting the staff delegation, or failing that, the employees themselves, has been initiated.
This type of decision is valid for 24 months and is tacitly renewable.
The Labour and Mines Inspectorate shall be notified of each decision taken within one month of it taking effect.
The applicable collective labour agreement or an inter-professional social dialogue agreement may extend or reduce the duration of the legal reference period, but this may not exceed 12 months. This possibility already existed before the law dated 23 December 2016.
However, that law eliminated the Minister of Labour’s prerogative of authorising a reference period of up to 12 months at the request of a company.
The collective agreement referred to in the first paragraph may provide that the social partners, at the appropriate levels set out by the collective agreement and in accordance with the conditions laid down therein, may conclude agreements subordinate to the collective agreement on the organisation of working time, including the reference period.
If the applicable collective labour agreement, subordinate agreement or cross-industry social dialogue agreement provides for a reference period different from the legal reference period (up to four months), and, where appropriate, by way of derogation from the legal provisions, it determines the principles applicable to the establishment of the work organisation plans to be drawn up in the undertaking(s) falling within its scope, with regard to the periodicity, content and procedures of the plan.
It should be emphasised that the additional leave provided for when the legal reference period is more than one month but not more than four months and the limits set for hours to be considered as overtime (more than 12, 5% of the normal monthly working time laid down by law or collective agreement where a reference period of more than one month but not exceeding three months is used and more than 10% of the normal monthly working time laid down by law or collective agreement where a reference period of more than three months but not exceeding four months is applied) do not apply in the event of a reference period negotiated in application of the above provisions.
Within the reference period, (full-time) workers may therefore be employed beyond the eight hours per day and the 40 hours per week, but only if:
the average weekly working time, calculated over the reference period of four consecutive weeks or one month, does not exceed 40 hours;
the work day does not exceed ten hours;
the work week does not exceed 48 hours.
The normal daily and weekly working hours of employees subject to a WOP or HM flexitime system remain those set out in their employment contract.
In the context of working time flexibility, a regulation on flexitime operations (HM – horaire mobile) can replace the work organisation plan (WOP) as described in the previous question.
Prior to the entry into force of the aforementioned law of 23 December 2016, the mobile timetable could be imposed unilaterally by an employer, subject to informing and consultation with the staff delegation by the employer.
The law dated 23 December 2016 goes further insofar as the decision relating to the institution of a flexitime system as well as its periodicity, content and modalities, including modifications, is taken within the framework of a collective labour agreement, a subordinate agreement, an agreement on inter-professional social dialogue or a joint agreement between the company and the staff delegation or, failing that, the employees concerned.
Flexitime is defined as a system of work organisation which allows individual working times and schedules to be adjusted on a day-to-day basis provided, they comply with both the legal limits on working time and the rules to be laid down in advance as part of the flexitime regulation. Unless there are legal exceptions, the working time may not exceed 10 hours per day or 48 hours per week.
In contrast to the WOP, flexitime allows employees to arrange the working time and duration according to their personal convenience, but with due respect to the needs of the company and the substantiated requests of other employees.
Employees can therefore decide for themselves when to arrive and depart from the workplace on a daily basis, while keeping to the limits set by the employer in the flexitime regulations and the constraints of the service. Thus, a flexitime regulation always provides for fixed daily time slots and for flexible daily time slots.
The fixed time slots indicate the compulsory attendance time of employees, while the flexible time slots allow employees to arrive and leave freely during the specified hours.
Example:
Company H operates using a flexitime schedule. The flexitime rules provide for fixed shift between 9:00 and 11:30 am and between 2:00 and 4:00 pm. Mobile shifts are from 7:30 a.m. to 9:00 a.m., from 11:30 a.m. to 2:00 p.m. and from 4:00 p.m. to 7:00 p.m.
However, should an employer ask employees to be present at 8:00 a.m. for a service meeting, they will have to be present at the required time, even if this time falls within the sliding scale of the flexitime regulations.
It should also be noted that the flexitime regulation will usually also contain a minimum rest period to be complied with by employees. This rest time will depend on the activity of the company.
If, at the end of the reference period, the count of the hours worked shows an excess of hours over the legal or conventional duration, this excess constitutes overtime work. However, the excess hours worked must be justified by service reasons.
For legal reference periods of one month or less, the flexitime regulation may determine a number of excess working hours that can be carried over to the next reference period.
If the count indicates a deficit of hours, this deficit must be made up within a period of time to be defined by the regulation for the flexitime organisation by exceeding the normal working time during the following reference period, if it does not give rise to increases for overtime; this shall comply with the limits imposed by the law, namely ten hours per day and 48 hours per week.
The company must set up a system to ensure an accurate count of the hours worked.
The staff delegation receives statements of the total number of hours worked per organisational unit.
However, the law dated 23 December 2016 provides a supplement to the procedure in the event of a dispute about the overall accounts.
In such a case, the delegation may contact the Labour and Mines Inspectorate, which must carry out a verification procedure. The Inspectorate draws up a report for the company and the staff delegation.
If disagreement persists and is duly noted by the Director of the Labour Inspectorate and Mines or that person’s delegate, the matter may be referred to the National Conciliation Office by the most diligent party.