lundi 16 juil. 2018

No union rights for intermittent contracts?


Intermittent contracts (CDII: contrat à durée indéterminée intermittent) stand apart from any other type of work contract, according to the French Labour Code. Indeed, an intermittent contract is neither full time nor part time, for it is deemed « sui generis », which means… well, no one really knows what that means and that’s why managers of private schools and training companies are so fond of it.

Our Trade Union for teachers and trainers unfortunately knows intermittent contracts intimately, as the 1989 National Collective Agreement for Training Companies (CCNOF : Convention collective nationale des  Organismes de formation, ID 1516) allows language schools to hire language trainers with intermittent contracts, which have to be the most insecure type of contract made legal in France.

 Almost zero-hour contracts

- Although an intermittent contract cannot, by law, be temporary, it offers no or very little permanence, as intermittent teachers don’t usually know when they’ll be given work, nor how much work they’ll be given. It’s not quite as bad as the infamous “zero-hour contracts” made legal in the UK, but it is possible for teachers in France to be given, for instance, a ten-hour contract. That’s ten hours of work guaranteed throughout the year, while the teacher is expected to work many more and is therefore requested to remain available way beyond those ten hours. In fact, many teachers end up working hundreds of hours beyond the minimum annual number of hours specified in the contract and yet their guaranteed workload (and guaranteed salary) never goes up.

If intermittent contracts were legally considered part-time contracts, all these extra hours would be qualified as “complementary hours”, thereby benefitting from a 25% hourly pay rate increase. Also, if intermittent contracts were officially part time, the employer would have to, after about three months of excess work hours, amend them in order to include a higher number of hours, i.e. a higher guarantee. The 25% pay increase for complementary hours and the obligation to add a higher number of hours on the contract after three months (12 weeks if workload increased non-stop, 15 weeks if increased on and off) are part of French legislation (Loi Aubry 2) drawn up to deter employers’ use of part-time workers as “flexitime” and “beck and call” labour. Alas, this law does not apply to teachers working with an intermittent contract.

-  The existence of intermittent contracts is justified by the unpredictability of the quantity of private lessons and training to be given, and by the impossibility to determine any long-term schedule. Intermittent teachers do have the right to turn down work here and there, but the rules explaining when and how the teacher can decline are very complex. The result is that a teacher’s schedule can change from one week to the next (or, in some cases, from one day to the next). Part-time contracts make such schedule changes more complicated for employers but, as intermittent contracts are not part-time, almost anything goes.

-  While intermittent teachers have to adapt to new schedules within a few days’ notice, they, in turn, have to inform their employer of their availability slots (times of the day, days of the week, months of the year, etc.) over a twelve-month period! As schools want available teachers and as teachers need enough work to earn a living, the consequence is that teachers’ availability slots tend to represent many more hours than the number of hours of work they will be given (and paid for). Thus, many intermittent teachers end up “owing” most of their waking hours to their boss, without knowing whether they’ll be given work or not, and without the freedom to organize their non-working time in advance (for instance to complement their income with another part-time job).

-  To make matters worse, an intermittent teacher who isn’t given work over a certain period cannot claim unemployment benefits. Only the termination of a work contract (e.g. the end of a temporary contract, or the end of a permanent contract due to a redundancy) will entitle an individual to Pôle Emploi benefits. (Do intermittent employees pay a smaller contribution to Pôle Emploi via the compulsory deductions taken from their gross salary? Of course not).

In a nutshell : intermittent contracts have to be among the most insecure in France, in spite of their claim to be « permanent » (CDI).

Not only for language trainers

The Collective Agreement for Training Companies specifies that intermittent contracts are for « language trainers », but it adds that all types of trainers can be hired under such a contract, provided a company agreement authorize this. As far as we know, not many training companies have signed an agreement that includes intermittent contracts for non-language trainers. Two exceptions that we know of, both very large organisations, are « Les Compagnons du Devoir et du Tour de France » (a nationwide association of workers and journeymen) and « AFTRAL” (formerly AFT-IFTIM, a training provider for road transportation businesses). The Collective Agreement legislation on intermittent contracts was supposed to be renegotiated in 1999-2000, as demanded by Trade Unions CGT and CFDT, but so far we’re out of luck. CGT and CFDT had actually refused to sign the initial version of the Collective Agreement in 1988 because of the very unfairness of intermittent contracts, but they were outnumbered by other signatories.

A national debate on intermittent contracts did resurface in 2012-2013, when a temporary “experimental” law (ANI: accord national interprofessional) allowed such contracts for all workers of small companies (fewer than 50 “full-time”employees”, see next paragraph) of three sectors : chocolate makers, sports and leisure garments and equipment sales and, of course, training. As we can see, training for employed and unemployed workers is deemed as seasonal and as unstable as the making of chocolates for Christmas and Easter eggs or as sales of skis and swim wear! This temporary law was set to run until the end of 2014.

Some half-times are worth more than others

According to the Collective Agreement for Training Companies, when a part-time employee works half time or more, this person has to be considered as full time in the staff count that determines how many staff representatives, if any, can get elected. This detail in the Collective Agreement is crucial. For instance, a workforce of eleven half-timers has the right to elect one representative, just as a staff of eleven full-timers would ; if all staff work 49% of a full time, however, 23 staff members would be required to reach the threshold of “11 full-time employees” and be allowed to elect one representative (délégué du personnel) to defend their rights.

So what if staff consists of 11 intermittent employees who each happened to work the same number of hours as a half-time employee? Well, that’s too bad, because they’re not officially part-time, are they? In other words, 22 intermittent employees who each worked half-time would be necessary to reach the threshold of 11 “full-time employees” (ETP: équivalents temps plein).

In short, intermittent workers don’t know when they’ll have work, they don’t know how much they’ll be earning each month, they’re not entitled to unemployment benefits, they have to remain available for their employer and thus cannot easily find part-time work elsewhere or organize their free time, and they count less than other part-time workers in terms of union rights.

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