Webinar Series Spotlight on Key Labour and Employment Issues The - PowerPoint PPT Presentation

Webinar Series Spotlight on Key Labour and Employment Issues The Law on Safeguarding Employment (13 June 2013) – Main provisions Jean-Marc Sainsard Pauline Pierce France March 26, 2014 39 Offices in 19 Countries

Today ’ s presenters Lew Clark Partner and today’s Moderator US lew.clark@squiresanders.co m Jean-Marc Sainsard Partner Paris jean-marc.sainsard@squiresanders.com Pauline Pierce Of Counsel Paris pauline.pierce@squiresanders.com 2

Main changes arising from the Law of 13 June 2013 • Rewriting of the collective redundancy procedure of at least 10 employees over a 30 days’ period within a company with a workforce of 50 employees or more.  Implementation of a social plan via a collective agreement  Implementation of a social plan via a unilateral document Dismissal procedure without implementation of social plan • • Obligation to seek a prospective buyer in the event of outright closure of a site • New rules concerning the consultation of the Works Council  New Works Council consultation timeframe (Decree of 27 Dec 2013)  The economic and social database  Further consultation on the company’s strategic positioning Creation of “agreements to maintain/preserve employment” • • Internal and External Mobility (“agreements of secured voluntary mobility”). • Part-time reform 3

Benefit of the reform of collective redundancy procedure • Before this new Law, there were no specific deadlines governing the procedure and litigation sometimes lasted for years. • The Law has not changed the key requirements of collective redundancies (need for a real economic ground, obligation of redeployment, supporting measures…) but: - provides specific deadlines - enables employer to set up a social plan via an unilateral decision in the absence of a collective agreement, or if the Works Council does not give its opinion within the applicable deadlines - allows the administrative authority (and no longer the judiciary one) to control the legality of the procedure and the content of the social plan. This new control procedure will limit litigation since the administrative authorities are, usually, more neutral and less politicized. 4

Collective redundancy procedure before the reform Preliminary information : In case of collective redundancy, the Company has to implement two different information/ consultation procedures of the Works Council: • Information/consultation on “Book II” : Presentation of the Company/Group and economic grounds of the contemplated restructuring operation. • Information/consultation on “Book I” : On the Social plan, the implementation of dismissal (including order criteria, calendar), the number of job cuts and relevant professional groups, the implementation of training, adaptations and redeployment measures. 5

Collective redundancy procedure before the reform • Collective redundancy procedure of at least 10 employees over a 30 days’ period within a company with a workforce of 50 employees or more • Assumption that the Works Council would appoint an expert (3 meetings instead of 2) Implementation of social plan by Implementation of restructuring project by + employer (Book I) employer (Book II) First meeting of the Works Council on Book II + Book I Then notification to the ‘Direcct‘ (the administrative authority) 21 days Second meeting of the Works Council on Book I Then notification to the Direccte Min. 45 to 75 days depending on the number of contemplated redundancies Max. 14 to 28 days depending on the number of contemplated redundancies Third meeting of the Works Council on Book I Then notification to the Direccte Notification of dismissals 6

Collective redundancies – Procedure following overhaul Book I prepared by the Book I by majority collective agreement *of the French OR Book II* + + Book II * employeur unilaterally entered into with trade unions labour code ** The Health and Safety First meeting of the 2 to 4 months Committee First meeting of the works council and meeting on WC on Book II + depending on number of Book II + Book I + meeting of the CHSCT** meeting of CHSCT redundancies Then notification to the Direccte*** *** The Regional Works council gives its 2 to 4 months Labour 2 to 4 months Experts opinion on the draft depending on Min. 15 days Authority depending on number of report collective agreement number of redundancies (max. 15 redundancies days Second meeting of the works council Sending by on Book I before employer WC and Signature of the opinion) Then notification to the Direccte CHSCT give collective agreement their opinion Works council and CHSCT give their opinion Sending by employer Employer sends unilateral document to Sending collective agreement to the the Direccte for approval Direccte for approval (time limit for response : 21 days) (time limit for response: 15 days) Positive response or absence of response Negative response Max. 2 months Consultation with works council and Displaying on the premises Appeal before amendment Administrative Court Max. 3 months 7 Sending it again to the Direccte Notification of redundancies Decision of Administrative Court

I- Reform of the collective redundancy procedure 1- Mandatory consultation of the Works Council on the Book II • Consultation purpose : The Works Council must be consulted on:  The reorganization/restructuring contemplated  The project of collective redundancy and its impact on the workforce. • Number of meetings: The Works Council must hold a minimum of two meetings, separated by at least 15 days (instead of 14 to 28 days previously, depending on the number of employees) – (art. L. 1233-30, I ° , al. 5). • Works council opinion: The Works Council has a limited period to give its opinion (2 to 4 months depending on the number of redundancies envisaged), starting from the 1 st meeting. A collective agreement could however provide for different deadlines (art. L. 1233-30, II ° ).  In the absence of any opinion being rendered during the applicable time period, the Works Council will be deemed to have been already consulted. 8

I- Reform of the collective redundancy procedure Minimum time period Works Council First meeting 15 days minimum Works Council Last meeting  Opinion Book II  Opinion Book I Maximum time period (depending on the number of redundancies envisaged) Between 10 and 99 employees Between 100 and 249 employees More than 250 employess Works Council Works Council Works Council First meeting First meeting First meeting 4 months maximum 3 months maximum 2 months maximum Works Council Works Council Works Council Last meeting Last meeting Last meeting  Opinion Book II  Opinion Book II  Opinion Book II  Opinion Book I  Opinion Book I  Opinion Book I 9

I- Reform of the collective redundancy procedure • The use of a chartered accountant to assist the Works Council on the Book II Where a chartered accountant is appointed, the deadlines for the disclosure by the employer of documents requested by the chartered accountant are as follows (art. L. 1233-35, al.1): - The chartered accountant has 10 calendar days from the start of his appointment to request from the employer all information deemed necessary to complete a report. The employer must respond within 8 calendar days; - The chartered accountant then has a further 10 calendar days to make any additional requests which must be answered in the following 8 calendar days. The chartered accountant must submit his report to the Works council at least 15 calendar days before the deadline given to the Works Council to give their two opinions (art. L. 1233- 35, al.2). The absence of a report cannot defer this deadline (article R. 1233-3-1). 10

I- Reform of the collective redundancy procedure 2- Implementation of a social plan (Book I) Choice by employer between: - Starting a negotiation with representative trade unions within the company to conclude a “ collective agreement ” which defines the content of the social plan, the terms of the consultation of the Works Council and of the implementation of the dismissals (article L. 1233-24-1 of the Labour Code).  The employer can start to negotiate on the social plan with the unions:  before the first meeting of the Works Council and therefore before its information/consultation on the Book II (article L. 1233-46 of the Labour Code) ; or  during the information/consultation procedure of the Works Council.  The Direccte must be “ informed without delay of the opening of negotiations” for the purpose of reaching a collective agreement (art. L. 1233-24-1). - Or, implementing a social plan via an unilateral document. Procedure: The Law does not specify how the negotiation of the agreement with unions is part of the information/consultation procedure of the Works Council (but negotiation must be finalized before the last meeting of the Works Council). The collective agreement and the unilateral document of the employer are not exclusive : A part of the procedure or of the content of the social plan can be determined by the agreement and the other part by the unilateral document of the employer. 11