The 2021 Legal Guide published by Tribune de Lyon offers precise and pragmatic answers to concrete issues faced by business owners/managers.
Fabien Pomart contributed to this Guide through an article entitled "The collective performance agreement: A tool for companies to adapt to the health crisis?".
This article is reproduced below and a courtesy English translation follows.
"The collective performance agreement: A tool for companies to adapt to the health crisis?" 1
Fabien Pomart, Partner
While it is impossible to know how long the effects of the health crisis will last, companies must adopt tools that allow them to cope with this situation.
The collective performance agreement can be considered as a solution because it allows to adjust the working hours and the remuneration of the employees while preserving the employment in view of a resumption of business activity.
How to set up a collective performance agreement?
If the company has trade union delegates, the agreement must be signed by them and by the employer, and then approved by the majority of the employees.
If the company does not have any trade union delegates, the agreement can still be considered but the conditions in which it can be set up depend on the size of the company's workforce:
- In companies with less than 11 employees: The agreement must be approved by a two-thirds majority vote of the employees;
- In companies with between 11 and 49 employees: If the company does not have a Social and Economic Committee ("SEC"), the agreement must be approved by a two-thirds majority vote of the employees. If the company has a SEC, the agreement must be negotiated between the employer and either one or more (i) employees mandated by one or more trade union organizations, or (ii) one or more members of the SEC, and approved by a majority of the employees;
- In companies with 50 employees or more: The agreement must be negotiated between the employer and the members of the SEC mandated by one or more trade union organizations and approved by the majority of the employees.
How to implement a collective performance agreement?
The employee is free to accept or refuse the application of the agreement to his/her employment contract. His/her refusal may constitute a ground for dismissal. If the employee accepts the collective performance agreement, the agreement applies to the employee's employment contract and prevails over any contrary or incompatible clauses set forth in said contract. The collective performance agreement may be concluded for a fixed or indefinite period of time. If the duration is not specified in the agreement, it is concluded for a fixed term and its duration is 5 years.
1 An extended version of this article is available on our Blog: Covid-19: Optimizing the long-term management of the crisis thanks to the collective performance agreement
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