Ordinance no. 2020–428 of 15 April 2020 introducing various social measures in view of the Covid-19 epidemic
This ordinance further expands the scope of short-time working to include new categories:
- senior executives: the ordinance specifies that senior executives can only be placed on short-time working in the event of temporary closure of their establishment or part of the establishment, as was the case previously for employees on a fixed number of working days ;
- agency contractors: the ordinance recognises that agency contractors on open-ended employment contracts can be placed on short-time working during periods when no services are provided to a client company. This represents a considerable change for the 50,000 agency contractors affected. A decree sets out the method for calculating their short-time working indemnity;
- employees of temporary employment agencies: the ordinance makes these employees – i.e. temporary workers on an open-ended employment contract – eligible for minimum monthly remuneration, including between assignments, equivalent to the minimum wage.
Regarding employees on work-study contracts, who already benefit from short-time working, the ordinance now distinguishes between two types of employee on an apprenticeship or “professionalisation” contract and placed on short-time working, depending on their level of remuneration:
- those whose remuneration is lower than the minimum wage receive an hourly short-time working indemnity, paid by the employer, of an amount equal to the percentage of the minimum wage applicable to them;
- those whose remuneration is higher than or equal to the minimum wage receive an hourly indemnity from the employer corresponding to 70% of the previous gross hourly remuneration, without that indemnity being less than the hourly minimum wage, i.e. €8.03.
Finally, the ordinance sets out methods for financing the short-time working indemnities paid to childminders and employees of private employers, which are divided between the government and UNEDIC (the body responsible for managing the unemployment insurance scheme).
Decree no. 2020–435 of 16 April 2020 on emergency measures in relation to short-time working
This decree contains three series of provisions:
Firstly, it sets out the method for calculating the short-time working indemnity and allowance for employees on a fixed number of working days . The number of days or half-days not worked is converted into hours as follows:
- a half-day not worked corresponds to 3 hours 30 minutes not worked;
- one day not worked corresponds to 7 hours not worked;
- a week not worked corresponds to 35 hours not worked.
Secondly, the decree sets out the method for calculating the short-time working indemnity and allowance for employees for employees who are not subject to legal or contractual provisions relating to working hours, including:
- cabin crew of companies whose organisation of working hours is based on alternating days of activity and days of inactivity, pursuant to Article D.422–5–2 of the French Civil Aviation Code;
- travellers, representatives and salespersons;
- freelance journalists with a regular client falling within the scope of Article L.7112-1 of the French Labour Code;
- performing artists.
Finally, the decree sets out the method for calculating the short-time working indemnity and allowance for all employees placed on short-time working:
- for employees who receive variable remuneration or who are paid on a non-monthly basis, the reference salary used to calculate the short-time working indemnity and allowance takes into account the average of the variable remuneration components, excluding professional fees and the components specified in Article 3 of the decree (see below), paid over 12 calendar months;
- the basis for calculating the short-time working indemnity and allowance excludes sums corresponding to professional expenses and remuneration components which, although treated as salary, are not paid in consideration of work effectively carried out, as well as sums not affected by the reduction or absence of work and which are allocated over the year. When the remuneration includes a fraction corresponding to payment of paid holiday allowance, that fraction is deducted when determining the basis used to calculate the short-time working indemnity and allowance.
The provisions of this decree are applicable to all employees placed on short-time working between 12 March 2020 and 31 December 2020.
Ordinance no. 2020-427 of 15 April 2020 introducing various provisions concerning deadlines in view of the Covid-19 epidemic
Under Article 2 of Ordinance no. 2020–306 of 25 March 2020 relating to the extension of deadlines during the health emergency period: “Any act (…) formality, registration, declaration, notification or publication prescribed by law or regulation on penalty of annulment, sanction, invalidity, time-barring, limitation, inoperability, inadmissibility, expiry (…) which should have been completed during the period mentioned in Article 1 [i.e. between 12 March 2020 and 24 June 2020] shall be deemed to have been carried out in time if it has been completed within a period not exceeding the legally specified deadline to act running from the end of this period, up to a maximum of two months.”
If these provisions were deemed to be applicable to the 15-day withdrawal period available to the employee in the event of a contractual breach, pursuant to Article L.1237–13 of the Labour Code, it would mean that no negotiated termination could take effect before 24 June 2020.
To avoid this situation, which would be very damaging for businesses and employees, Article 2 of Ordinance no. 2020–427 added the following provision to Article 2 of Ordinance no. 2020-306: “This article is not applicable to the withdrawal period (...). This amendment of Article 2 is of an interpretative nature.” This interpretative nature gives a retroactive effect to this provision.
Article 7 of Ordinance no. 2020–306 of 25 March 2020 stipulates: “The periods at the end of which a decision, an agreement or an opinion can or must be received, or is implicitly acquired, from one of the bodies or persons mentioned in Article 6, and which have not expired by 12 March 2020 are suspended as from that date until the end of the period mentioned in point I of Article 1.” The effect of these provisions was to prohibit any tacit approval, after a period of 15 days, of a negotiated termination under Article L.1237–14 of the French Labour Code, any tacit approval of an agreement instituting a job protection plan or any tacit approval of a unilateral document instituting a job protection plan, during the legally protected period, i.e. until 24 June 2020.
To avoid this dual consequence, which would have been very damaging for French companies, Article 7 of Ordinance no. 2020–427 supplemented the provisions of Article 9 of Ordinance no. 2020-306, which allows derogation from the provisions of Article 7 by decree, by providing for the possibility of derogation for reasons of “protecting jobs and activity, securing labour relations and collective bargaining”.
On these grounds, a decree may re-establish the possibility of tacit authorisation both for the approval of negotiated terminations and for the approval of job protection plans.
The need for this decree, which will necessarily take a certain amount of time, raises questions about why the government did not take advantage of the flexibility offered by the ordinances system, which allows the adoption not only of provisions of a legislative nature – its intrinsic purpose – but also of regulatory provisions to permanently resolve this situation.
Since a relatively large number of regulatory provisions were required to implement the ordinances, the government could have included them in the ordinances themselves, thereby simplifying and shortening the process.
Pending the publication of this decree, which should (could) be retroactive, companies are advised to contact their local DIRECCTE (Regional Directorate of Enterprise, Competition, Consumer Affairs, Labour and Employment) to obtain an explicit decision.
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