French law provides that may be implemented in certain circumstances a “forfait jours” mechanism which is a type of organisation of employee working time based on a fixed number of working days per year (i.e. 218 days) with no reference to any working hour.

Since 2011, under the influence of EU Law, the “forfait jours” mechanism has been subject to intensive review of the French Supreme Court ensuring that such a mechanism does not adversely affect the health and well-being of employees.

The French Supreme Court already took the view last year on two occasions that the “forfait jours” mechanism provided for by CBAs governing and applicable to the chemical and the wholesale trading/retail industries should be considered as unenforceable as the CBAs did not provide sufficient protection of employees’ health and well-being (French Supreme Court, 31 January 2012, n°10-19.807 ; 26 September 2012, n°11-14.540).

On 24 April, the French Supreme Court was brought to question the validity of the “forfait jours” mechanism provided for by the so-called Syntec CBA. (French Supreme Court, 24 April 2013, n°11-28.398). The Syntec CBA is the CBA applicable to a widespread of industries (i.e. general engineering, IT, surveyor and consultancy companies).

In this decision which is destined to be published in the official records of the French Supreme Court, the position held was that the provisions of the Syntec CBA fail to protect employees’ health and well-being and ensure employees’ rights against unreasonable workloads.

The French Supreme Court thus concluded that the « forfait jours » clause for the Syntec CBA is null and void.

The repercusions of this decision are that each employee working under the Syntec CBA and who is subject to the “forfait jours” mechanism now has the right to request the payment of overtime hours performed over and above 35 hours per week, where under the “forfaitjours” mechanism, setting aside working time hours, did not grant such right to employees for overtime.

If companies that are governed by Syntec CBA have implemented a “forfait jours” mechanism, they are now under the obligation to take (in a company agreement) drastic measures in order to comply with the necessary standards of health and well-being set out by the French Supreme Court.

Client Alert 13-119