In principle, the collective agreement applicable to the employment relationship is the one covering the main activity of the company. But beware, the mention of another agreement in the employment contract can change the situation.
A collective agreement, which is not that of the main activity, mentioned in the employment contract
An employee had been hired as a part-time reporter-photographer (56 hours per month) by a press agency. He then seized the industrial tribunal to request, in particular, the application of the collective agreement for press agencies.
In practice, the company applied to the employee the collective agreement covering its main activity, namely the national collective agreement for journalists.
However, the employee considered that it was the collective agreement of the press agencies which was to apply, insofar as his employment contract mentioned it. For the employee, the employer had thus intended to make a voluntary application of this conventional text.
Note it
In principle, the employer applies the collective agreement covering the main activity carried out by his company. In the absence of an applicable collective agreement, the employer may decide to voluntarily apply a collective agreement. This can in particular take the form of an express mention in the employee’s employment contract or on the pay slip.
The first judges had not given in favor of the employee.
Seized in turn, the Court of Cassation adopted a different analysis from that of the trial judges.
Mentioning a collective agreement in the employment contract obliges the employer to apply this agreement
The Court of Cassation begins by recalling that if, in collective labor relations, only one collective agreement is applicable, which is determined by the main activity of the company, in individual relations, the employee, failing to avail himself of this agreement, may request the application of the collective agreement mentioned in the employment contract.
However, to say that the applicable collective agreement was that of journalists, the first judges had held that:
- the judge must, to determine the collective agreement to which an employer is subject, concretely assess the nature of the activity which he exercises as his main activity, without sticking to his statutes, nor to the mentions appearing in the employment contract or on payslips and other company documents;
- the reference to the identification of the employer with INSEE has only an indicative value, the functions performed by the employee are irrelevant and the burden of proof of the real activity lies with the party requesting the application of a collective agreement;
- the company mainly exercises its activity in the field of horse racing, employing reporter-photographers to build up an image bank and sell the reports produced to various clients.
From all these elements, the first judges had concluded that the employees recruited were subject to the collective agreement of journalists and not to that of employees of press agencies.
Wrongly for the Court of Cassation, which considers that the reference in the employment contract to the collective agreement of the press agencies was worth recognition of the application of the agreement with regard to the employee.
Cour de cassation, social chamber, July 5, 2023, n° 22-10.424 (to determine the collective agreement to which an employer is subject, it is necessary to concretely assess the nature of the activity that he carries out as his main activity, without limiting himself to its articles of association, nor to the statements appearing in the employment contract or on payslips and other company documents)
2023-08-07 08:30:06
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