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Labour & Employment 2019 Market Intelligence Market LABOUR & EMPLOYMENT 2019 LABOUR EMPLOYMENT & LABOUR & EMPLOYMENT 2019 Global interview panel led by DLA Piper © Law Business Research 2019 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall [email protected] Labour & Senior business development managers Adam Sargent [email protected] Employment Business development manager Dan Brennan [email protected] 2019 Published by Global Trends ..................................................................... 2 Law Business Research Ltd Australia ............................................................................... 6 Meridian House, 34-35 Farringdon Street Brazil ...................................................................................20 London, EC4A 4HL, UK France .................................................................................26 Cover photo: iStock.com/ooyoo Germany .............................................................................40 India .....................................................................................48 This publication is intended to provide general information on law and policy. The Italy ......................................................................................64 information and opinions it contains are not Japan ...................................................................................74 intended to provide legal advice, and should Morocco ..............................................................................90 not be treated as a substitute for specific advice concerning particular situations Russia .................................................................................96 (where appropriate, from local advisers). Spain..................................................................................108 Turkey ...............................................................................116 No photocopying. CLA and other agency United Kingdom .............................................................126 licensing systems do not apply. For an authorised copy contact Adam Sargent, United States ..................................................................138 tel: +44 20 3780 4104 © 2019 Law Business Research Ltd ISBN: 978-1-83862-197-1 Printed and distributed by Encompass Print Solutions www.lexology.com/gtdt 1 © Law Business Research 2019 Photo by David East on Unsplash 26 Labour & Employment 2019 © Law Business Research 2019 France Philippe Danesi is location head of employment for DLA Piper in France. He is involved in all aspects of employment law. He has broad experience in assisting companies in dealing with the employment aspects of complex restructuring oper- ations and related litigations. He has specific experience negotiating and implementing social plans, outsourcing, transfer of personnel, cross-border transactions as well as in negotiating and implementing working time strategies and collective bargaining agreements. He handles collective issues and litigation involving unions and staff representatives before labour, civil, criminal and administrative courts in France. Marie Durand-Gasselin advises and represents local and international clients on various labour law issues, from individual (recruitment to termination of employment agreements) to collective labour relations (management of staff representatives, information and consultation processes, negotiation of collective company agreements). Marie also has a solid experience in mass redundancies, plant closings, implementation and monitoring of social plans, as well as social consequences of corporate M&A, group reorganisations, transfer of businesses or outsourcing of activities. Within the employment law department, Marie has developed an acute knowl- edge and growing practice with regards criminal law, compliance law and data protection law issues arising from employee and HR management (codes of conduct, whistleblowing regulations, internal investigations, processing of employee personal data, undeclared work). Marie represents clients in the context of employ- Photo by David East on Unsplash ment litigations, through both settlement negotiations and court proceedings. www.lexology.com/gtdt 27 © Law Business Research 2019 France 1 What are the most important new developments in your jurisdiction over the past year in employment law? In the autumn of 2017, President Macron unveiled his labour law reforms aimed at increasing the economic attractiveness and competitiveness of France by bringing more security to employment relationships, simplifying and strengthening the social dialogue and promoting collective bargaining at company-level in order to better address the companies’ operational constraints. This reform has the ambitious objective of promoting a free, dynamic and responsible dialogue with social partners within the company, in order for companies to have more ability to adapt to the challenges of a global economy. Over the past year, this reform has triggered a profound shift in the role and responsibilities granted to French unions, since they now have the ability, provided they have proven to be fairly representative within the company, to negotiate at the level of the company collective agreements that can be less favourable than the rules of the applicable industry-wide collective bargaining agreement (industry-CBA) and, even, under specific circumstances, supersede individual employment contracts. Such power given to the unions is consistent with the fact that they have become more legitimate, as their representativeness is granted by the employees through democratic elections of employee representatives. By way of background, employment relations in France are essentially governed by our detailed and cumbersome Labour Code, as well as by the appli- cable industry-CBA and eventually company practices and collective bargaining agreements negotiated at company-level. A strict hierarchy traditionally applied, where employee rights and entitlements set forth by labour laws could not be reduced by CBAs and, likewise, entitlements provided by the industry-CBAs could not be reduced by collective company agreements. Adapting the rules was only possible if more favourable to employees. With the labour law reforms, and since 1 May 2018, only ‘majority collective agreements’ are valid. Majority collective agreements are collective company agree- ments signed by one or more unions that obtained at least 50 per cent of the votes cast at the first round of the last elections of employee representatives, or at least 30 per cent if then approved by referendum. Under these, there is the possibility to deviate and reduce employees’ entitlements negotiated at industry level in a wide range of topics (except for areas such as minimum wages, gender equality or job classification). Majority collective agreements also allow the negotiation of the implementation of instruments such as collective mutually agreed terminations (RCC agreements), 28 Labour & Employment 2019 © Law Business Research 2019 France Philippe Danesi Marie Durand-Gasselin ‘competitiveness agreements’ or agreements on the level of implementation or functioning of the Social and Economic Committee (CSE). Even if not many have yet been entered into to date, it is worth noting that competitiveness agreements allow – in the absence of economic difficulties and in order to adapt to the company’s operating constraints or to safeguard or sustain employment – deviation from provisions emanating from CBAs or even more remarkably from employment contracts on working time duration and organisation, remuneration and professional or geographical mobility. Also, the provisions of competitiveness agreements automatically cancel and supersede all conflicting and inconsistent clauses contained in employment contracts so that employees’ refusal to implement such competitiveness agreements constitutes, in and of itself, a valid cause for termination by the employer, which entitles the employee to benefit from unemployment insurance with increased training rights paid by the employer. Such terminations are not based on economic grounds and therefore do not trigger the (costly) obligation to implement a social plan. With these new regulations, elected and legitimate unions become critical contributors of flexibility, adaptability and ‘deregulation’ within companies. In other www.lexology.com/gtdt 29 © Law Business Research 2019 France “By 1 January 2020, all companies employing at least 11 employees over a consecutive 12-month period shall have set up a Social and Economic Committee.” words, the collective interest supersedes individual interests, depending on the signature of the unions, with related impact on their potential re-election. The negotiation of collective company agreements allowing such tailor-made company rules to prevail over the provisions of industry-CBAs has also been facilitated in small and medium-sized enterprises, where the need for flexibility and adaptability is even more critical but where unions are often not present. In these companies, it is now possible to negotiate with elected CSE members or, in micro-businesses that do not have elected a CSE, directly with the employees themselves through referendums. Another key evolution that has already had concrete repercussions in most French companies over the past year is the merger of the three previous infor- mation and consultation bodies into a single staff representation
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