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The Emergency Measures Order relating to Part-time Work and Flexi-hours: a considerable extension of the scope of application of this provision

Order No. 2020-346 of March 27, 2020 was eagerly awaited

30/03/2020

Order No. 2020-346 of 27 March 2020 on emergency measures relating to part-time work and flexi-hours, published on 28 March 2020 in the Official Journal, was eagerly awaited.

On the basis of its authorisation under Article 11, 1°, b), of Emergency Act No. 2020-290 of 23 March 2020 to deal with the Covid-19 epidemic, the Government has carried out a far-reaching reform which, on the one hand, greatly extends the scope of the part-time work and flexi-hours procedure and, on the other hand, modifies the system in a more limited way.

The extension of the scope of application of the part-time work and flexi-hours scheme concerns:

  • firstly, public companies which were not eligible for this until now: henceforth, private-law employees of all companies registered in the national directory of companies with State majority control, such as the SNCF or the RATP, will be able to benefit from it;
  • boards with sole financial autonomy, which manage a public service of an industrial and commercial nature for ski lifts or ski slopes will also be able to benefit from it: this measure responds to the current crisis in winter sports;
  • foreign companies not having an establishment in France and which employ at least one employee on national territory will also be able to benefit from this scheme, on condition that they are affiliated to the French Social security System and to unemployment insurance;
  • home-based employees and childminders will now benefit from this part-time work and flexi-hours scheme, which is simplified so as to adapt itto their specificities. Thus, employers who are private individuals are exempt from the obligation of having a permit from the administrative authority; the hourly compensation paid by the employer is equal to 80% of the net remuneration and will be reimbursed in full by the State, through the URSSAF (French Social Security Fund);
  • employees whose working hours are counted according to an equivalence system, such as employees in transport and hotels, café-restaurants, will now also be able to benefit from this scheme;
  • finally, the employees targeted by Article 8 of the order which provides that "for the employer of employees who are not subject to legal or contractual provisions relating to working hours, the methods of calculating the indemnity and the allowance are determined by decree.” This formula seems to target two categories of employees who do not currently benefit from part-time work and flexi-hours: travelling sales persons, sales representatives, and executive managers. However, it will be necessary to wait until the implementing decree is issued to be sure that they are indeed the ones targeted. The same article provides that an implementing decree will specify, for employees on fixed-day contracts, the method of converting their number of working days into hours.

The Order also amends a certain number of sensitive points of the part-time work and flexi-hours scheme:

  • with regard to part-time employees, it provides that the hourly rate of the part-time work and flexi-hours allowance paid to them may not be less than the hourly rate of the minimum wage in France (SMIC);
  • with regard to employees on apprenticeship or professionalisation contracts, it provides that the hourly part-time work and flexi-hours allowance that will be paid to them will be equal to the percentage of the minimum wage applicable to them under the provisions of the Labour Code;
  • Article 5 of the Order provides that "the second paragraph of Article L.5122-2 of the Labour Code is not applicable to training courses for which the employer has given its approval after the publication of the Order: the Government is therefore abolishing, for the duration of the health crisis, 100% compensation for hours off work to undertake training courses. The exorbitant cost of the scheme in the current period has led the Government to tighten the screws on this point;
  • under section 6 of the Order, "part-time work and flexi-hours is compulsory for protected employees […] without the employer having to obtain their approval, since it affects all employees of the company, establishment, service or workshop to which the person concerned is assigned or attached.” This provision is contrary to case law which requires the employee’s approval in this case. It is nevertheless logical insofar as the implementation of the part-time work and flexi-hours is a prerogative of the employer, in the same way, for example, as overtime. Finally, it has as compensation a reaffirmation of the collective nature of the part-time work and flexi-hours scheme;
  • Article 11 of the Order simplifies and unifies the methods for calculating the CSG (Health Insurance contribution) for all employees in the part-time and flexi-hours scheme.

Article 12 of the Order provides that it will be applicable until a date set by decree and, at the latest, until 31 December 2020.


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