Working time for executives: the annual follow-up meeting for flat-rate number of days agreements

May 27th 2016

Of all the forms of flat-rate agreements, the annual flat-rate for the number of days of work is undoubtedly both the most flexible and the most derogatory of working durations.

The risks which this type of flat-rate number of days causes, in particular on the employee’s health, who is subject to an annual flat-rate number of days agreement or on the conciliation of his professional activity with that of his family life, more than justifies close scrutiny of this agreement.

Scrutiny, firstly, by the judge, since the ruling issued by the employment section of the Cour de cassation (French Civil Supreme Court) on June 29, 2011 (no. 09-71.107) based on the recommendations of supranational standards (Preamble of the Constitution of October 27, 1946, Treaty on the functioning of the European Union making reference to the European Social Charter and the Community Charter of Fundamental Social Rights for workers and the Charter of the Fundamental Rights of the European Union).

The employer must also pay particular attention to the follow-up of the flat-rate clause.

It is in this context that the legislator in 2008 (law no. 2008-789 of August 20, 2008 providing rehabilitation to the social democracy and reform of working time) set up a mandatory annual meeting for the employees working under an annual flat-rate number of days agreement.

Accordingly, article L.3121-46 of the French Labor Code sets forth that an “an individual annual meeting shall be organized by the employer, with each employee who has concluded an annual flat-rate number of days agreement. It shall concern the amount of work to be assumed by the employee, the organization of the work in the company, the balance between the employee’s professional activity and personal and family life, as well as the employee’s remuneration”.

This text requires the employer to deal with three issues.

The first concerns the content of the meeting which, ironically, may involve the employer impeding on the employee’s personal and family life, which the law and the courts prohibit.

The second concerns the philosophy of the text which can easily be related, given the recent evolution of the case law, to the need to protect the employee’s physical and mental health. Therefore, the obligation set by article L.3121-46 of the French Labor Code takes another stance as it constitutes, from the point of view of health protection, a part of the prevent policy. The following conclusion is reached: the non-compliance with this obligation constitutes a breach of the performance obligation to ensure safety with all the consequences that are entailed under the employment law and the law on work-related accidents.

The third and last results from the comparison of article L.3121-46 of the French Labor Code and the evolution of case law, which recalled in 2011 that the employer who fails to set up the follow-up mechanism for the annual flat-rate number of days agreement shall prevent him from asserting the existence of this agreement (French Civil Supreme Court employment section, June 29, 2011, no. 09-71.107). This analysis by the case law on the need to protect employees’ health shall apply a fortiori as it is a legal directive.

Such practice is far from trivial and if it is considered as a mere formality would now more than ever involve the employer being subject to serious consequences.

The risk is all the more pronounced as the mandatory annual follow-up meeting also concerns the employees who have concluded an annual flat-rate number of days agreement prior to the law of August 20, 2008 (French Civil Supreme Court, employment section, March 12, 2014, no. 12-29.141).

Nicolas Audibert