mercredi 19 sept. 2018

New info concerning customary fixed-term contracts (CDD d’usage*) : Judges demand that series of CDD d’usage be justified


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One step back, one step forward : in this instance, the Social Chamber of the Court of Cassation has made one step forward for employees through two rulings on January 23, 2008 . One of these rulings concerns a visual arts teacher : Cass.soc., 23/01/08, n° 06-44.197 FP-PB, AFPMc/Lopez.

In 2003, the Court of Cassation had ruled that judges need not verify if the employee’s position was temporary by nature. In 2008, the obligation to verify this was reinstated. This decision, prompted by EU Community legislation, overrules the 2003 jurisprudence regarding companies’ practice of using one customary fixed-term contract after the other.

When one employee has worked under a series of customary fixed-term contracts, judges must verify that this practice is justified by « objective reasons », i.e. « concrete elements that demonstrate the temporary nature of the position. The ruling enforces Community legislation, specifically the March 18, 1999 Framework and Directive on fixed-term employment (Clauses 1 and 4) whereby member countries must prevent abuse. Two bills produced before the 2003 ruling had ignored this part of Community legislation. In 2008, in order to prevent abuse, the Social Chamber decided to strengthen judicial supervision when customary fixed-term contracts follow one another.

The existence of a constant custom of relying on fixed-term contracts, even when authorized for certain jobs by a collective agreement (such as in the Non-State funded Private Schools – enseignement privé hors contrat – and in the Training Companies – organismes de formation – collective agreements) is not in itself an objective reason to rely on series of customary fixed-term contracts. The temporary nature of the position must still be demonstrated.

This is good news for many employees in our sectors, who have to deal with precarious employment and lifestyle, imposed systematically and unduly.

(*) Reminder: According to French labour law, companies are allowed to hire workers with fixed-term contracts (CDD) only when a specific temporary circumstance, for instance the need to replace an employee on sick leave, is present. By default, all work contracts should be unlimited term (CDI). However, certain “seasonal” or “unstable” sectors, such as teaching, training, forestry, etc, who constantly rely on fixed-term contracts, are allowed to use fixed-term contracts more often. These sectors, listed in the Labour Code, are therefore allowed to use contracts known as “customary fixed-term” (CDD d’usage).

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