When does a benefit become a business use? Does the use commit you over time? Find out everything there is to know about business use!
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In business, certain practices, certain advantages and certain bonuses come out of the classic scheme of the employment contract, the company or conventional agreement. But what status do these “benefits” have? Can they be removed without formalism? Is usage becoming a norm that commits the employer to keeping it?
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In our article, we go around the question of business use also sometimes known as “ways and customs”. When does an advantage become a use and can it be denounced? We tell you everything!
Business use, what definition?
The Labor Code does not provide any legal definition of corporate usage.
In order to determine whether a business practice falls within the scope of usage, it is then necessary to refer to the various jurisprudential decisions which have enacted, over the course of the judgments, criteria making it possible to determine whether the advantages and practices granted by the employer must be considered as uses or not.
The criteria that determine the use in business
To be considered a use, the practice in question must result from the employer’s desire to grant an advantage, whatever it may be, to its employees.
This advantage can be implicit, that is to say that it does not need to be written to apply, it must also be more favorable than the law and/or the collective agreement to be applicable; and finally, it must also meet the following three criteria of:
- Generalitywhich implies that the benefit in question must apply either to all staff, or to one or more categories of staff, such as managers or supervisors in the logistics department.
- Constance, implying that the benefit in question is repeated over time. This is not a unique and exceptional fact. It should be noted that case law considers that constancy is established as soon as the advantage is granted for 3 consecutive years.
- Fixitythe allocation and/or the amount of the benefit in question complies with specific rules which do not vary over time.
Business use, example!
These criteria can sometimes lead to various interpretations of the advantages which constitute or do not constitute a use within the company.
To help you see a little more clearly, here are some examples of what constitutes business use:
- An end-of-year bonus (holiday or other), in the event that the latter is paid each year to all staff or to a category of the latter and the amount or calculation rules of which are fixed from year to year. year.
- Authorization of absence for employees without deduction of remuneration in order to attend the start of the school year for their children.
- The granting of one or two additional days off.
- Allocation of additional rest when a public holiday falls on a day not worked.
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Business use, can we denounce it?
Depending on its economic situation, the context, the competition, the evolution of professions or any other aspect, the practice in force in the company can become an obstacle to the development of the latter and/or call into question its sustainability.
In these cases or quite simply in the event of the simple will of the employer to put an end to a use, a procedure of denunciation will have to be implemented. Similarly, in the event of a change in use, without however completely abolishing it, the employer must also follow the same procedure as that for denunciation.
How do I terminate corporate use?
Whether in the event of removal or modification of use, the employer must comply with three distinct and cumulative formalities. It’s about :
- Information from the CSE. When the company has a CSE, the employer must inform its representatives of the conditions of the denunciation during an ordinary meeting so that they are recorded in the minutes. Note that the employer will not be bound by the opinion of the CSE.
- Individual information for employees. By means of a letter delivered by hand or by registered mail with acknowledgment of receipt, the employer must inform the employees subject to the use of his forthcoming denunciation.
- Compliance with a notice period. If it is not defined by law, this period must nevertheless be sufficient to allow possible negotiation of the conditions of denunciation and/or modification. It should be noted that the Court of Cassation considers that a period of three months appears to be sufficient.
The establishment of a collective agreement
When concluding a collective agreement having the same purpose as a practice in force within the company, the latter is automatically terminated without the employer needing to implement the denunciation. And this even if the use happened to be more favorable than the collective agreement in question.
Does the transfer of the contract put an end to the use by operation of law?
The transfer of employment contracts resulting from a sale, merger or other does not put an end to the practices in force.
If the new employer wishes to put an end to these uses, he must then follow the denunciation procedure mentioned above.
Can employees oppose the denunciation of use?
When the employer respects the procedure for denouncing the use, neither the employees nor the staff representatives can oppose it.
Employer, what are the risks in the event of non-compliance with the rules of denunciation?
In the event of non-compliance with the procedure for informing the CSE and the staff concerned within a sufficient period of time, the practice is considered to be still in force and will continue to apply until it is denounced in the rules.
Thus, an employer denouncing the practice concerning the payment of a bonus of 13th month on the occasion of the December pay during the month of November cannot be considered valid. As a result, the practice will still be in force and the employer will have no choice but to pay this bonus under the same conditions as usual. Unless this change is due to the establishment of a collective agreement.
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