lundi 16 juil. 2018

Is it the end of customary fixed-term contracts (CDD d’usage) ?


The use of fixed-term contracts (CDD) must be justified by the temporary nature of the position concerned.

(Cass. Soc., November 30, 2010, n° 09-68.609 à n° 09-68.612, FS-P+B, Assoc Inter production formation c/ Mme D. et a: JurisData n° 2010-022562.)

The employer must concretely justify the objective reasons establishing the temporary nature of the position, in this case that of « occasional trainer » (intervenant occasionnel).

everal employees of a training not-for-profit society were hired between 2001 and 2004 as trainers with part-time, fixed-term contracts. They took their case to the Labour Court (Conseil de Prud’hommes) in order to get their contracts upgraded to open-ended full time.

The Court of Appeal granted the upgrading to open-ended contracts (CDI), and the employer appealed to the Court of Cassation.

The employer argued that the use of fixed-term contracts corresponded to cases authorized in article

L.1242-2 of the Labour Code and in the Collective Agreement for Training Companies. Both legal documents allow the use of fixed-term contracts when a variation of workload activities occurs. According to the employer, the number of training sessions given year after year is unpredictable, as this number depends mostly on the execution of government contracts, and the employer has no guarantee these will be renewed the following year.

However the Court of Cassation confirmed the Court of Appeal’s sentence, and reconfirmed the contracts should be upgraded as open-ended. According to the Court of Cassation, “the detailed list, described in the Collective Agreement, of positions for which a customary fixed-term contract can be used does not relieve the judge, in case of litigation, from concretely verifying the existence of objective reasons establishing the temporary nature of the position in question.”

Regarding the occasional nature of the tasks the employees were hired for, the Court of Cassation noted that the contracts were in fact renewed every year and that, as a consequence, “running the training sessions for social and professional reintegration of job seekers, assigned to the society Inter Production Formation per order or government contracts, did not present an occasional nature.” Also, the Court mainly took into account the Court of Appeal’s observation that “trainers employed with open-ended intermittent contracts taught the same training sessions as the employees with fixed-term contracts did, and that the employer was not able to justify this simultaneous use of permanent and non-permanent staff, nor the proportion of work performed by permanent and non-permanent staff depending on workload variations; that the objective reasons establishing the temporary nature of the jobs of occasional trainer, as defined by article 5.4.3 of the Collective Agreement for Training Companies, were not concretely justified.”

On the other hand, the employees did not succeed with regards to upgrading their contracts from part time to full time. The Court of Cassation stated that “the mere fact  there was no mention of the limits within which overtime hours may be worked beyond the schedule determined in the part time contract, despite article L.3123-14, 4 of the Labour Code, does not entail upgrading the contract to full time.”

The contracts thus remained part time but were made open-ended, and related compensation was due.


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