The implementation of an annual lump sum agreement in days (“forfait jours”) requires a collective agreement with provisions aimed at protecting the employee’s health and safety as well as an individual agreement with the employee. Therefore, this requires the employee’s consent.
The law of 8 August 2016, known as the “Labour Law” provided for the possibility of employers to conclude, under certain conditions, an individual lump sum agreement when certain conventional stipulations were absent. The law also put in place a system allowing for the continued application of individual lump sum agreements in hours or days, without the employee having to give their consent, when the collective agreements that provide for these individual agreements are revised in order to be compliant with the new obligations set out by case law.
The French Supreme Court has now provided additional information, which derived from a case concerning the hotels, cafés, and restaurants sector. If the collective agreement was signed before the application of the Labour Law, then the rider that is used to render the collective agreement compliant cannot be automatically applied to the individual agreements being used. This means that for the older collective agreements, it is still necessary to obtain the employee’s consent, through a new individual agreement.