Whatever may be the final text of the Bill on the duration of working time, one thing is certain, overtime is held the features because the Government will not up to its motto of "work more to earn more."
The general idea is to reserve to act the enunciation of the principles and to leave the social partners, at all levels, to organize within this very flexible legislative framework. Nevertheless, we feel little enthusiastic business the idea of ironing to the negotiating table: the memory of the period 1998-2000 is still devastating.
The Government would therefore be well advised to keep the Act subjects which have upset eight years ago, at the forefront of which is the notion of actual work. Indeed, after fierce, on this issue, in Parliament, debates continue in the courtroom.
The question was whether he should be baptized "work time" all times where the employees are at the disposal of the employer or if he had to make a distinction between the time actually spent on work and allocated to peripheral activities, travel, shower, dressing and undressing. This may seem trivial but businesses, making their accounts were overview that time represented a significant cost.
With regard to the time of dressing and undressing, the matter was settled by amendment Mickey (so named because the issue had been addressed by employees of Euro Disney): "When the port of a work dress is imposed by laws or regulations, provisions by conventional clauses, the rules of procedure or the contract of employment and that dressing and the dressing must be carried out in the business or in the workplace"", the time required for wrapping or stripping operations subject of counterparties, or as rest, namely financial, determined by collective agreement or agreement or failing that, by the contract of employment" (former article l 212 - 4, new article art.) L. 3121-3).
Dressing and undressing was therefore viewed as a hardship than as time of work itself. Thus believed to have finally solved the problem. He did not, because of divergent voices was raised immediately about the obligation of negotiation, the unions felt the need to negotiate as soon as the port of dress was required, employers arguing that negotiation was not required when an employee was handling at home.
First, the Court of cassation took a shortcut and adopted the position of trade unions. In two relatively recent decisions (Cass. Soc.,. 26 Jan 2005,. 5 Dec 2007), it was decided that from the time when a specific was mandatory for staff, it was assumed that the package was in the workplace. However, some employers refused to be beaten and the society of transportation public Agglomération Stéphanoise (STAS) has just bring them victory.
Defending the bus drivers, three unions claimed negotiations. The employer refused, pointing out that drivers, who took their service at 5 a.m., arrived at the depot, which already their uniform and there was therefore no subjection to compensate. Trade unions objectèrent while it is for employees of an option: after all, the employer could not impose dress at home, what would have been an infringement of individual freedom. In doing so, they said, the employer exposed them to a risk because they could be identified as belonging to the STAS outside their working time. Dress at home could therefore only be a personal choice. The Court of appeal of Lyon was sensitive to argument or it had wind of the impending decision of the Court of cassation (judgement date of January 21, 2005), are known, but it allowed favourably the request of the unions.
Operating a turnaround at 180 , the Court of cassation decided now that the negotiation of counterparties is not place to be when employees are not required to Don or remove their uniform in the workplace (Cass. Soc., March 26, 2008, no. 05 - 41 476).