The collective agreement mentioned in the employment contract […].

The collective agreement mentioned in the employment contract is deemed to be an irrefutable acknowledgement of its applicability to the individual relationship.

Cass. soc. 5 July 2023, n°22-10.424, published in the Bulletin

The collective agreement applicable to employees is that governing the employer’s main activity (article L2261-2 of the French Labour Code).

The criterion of the company’s main economic activity is in fact decisive in identifying the collective agreement applicable to collective labour relations (Cass. soc., 13 March 2013, no. 11-27.854).

Only the company’s actual activity takes precedence, regardless of the information contained in the company’s articles of association (Cass. soc., 16 Nov. 1993, no. 90-44.807 published in the Bulletin).

However, the predominance of this criterion only applies to collective labour relations.

What about individual relationships?

While the actual activity of the company in principle determines the applicable collective agreement, it was initially accepted, on the basis of the directive no. 91/533 of 14 october 1991 and the former article R143-2 [now R3243-1] It should be noted, however, that the French Labour Code (Code du travail) requires employers to inform employees of the applicable collective agreement, and that its mention on the pay slip constitutes recognition of its application to the company in individual relations (Cass. soc. 18 Nov. 1998, Sct hôtelière cognacaise c./ Mme Mazif).

This was an irrebuttable presumption which, as a result of a change in case law prompted by Community law, was subsequently transformed into a simple presumption that could be rebutted by the employer (Cass. soc., 15 Nov. 2007, no. 06-44.008, published in the Bulletin).

On the other hand, mention of a collective agreement in the employment contract is sufficient to apply it to the employee, regardless of the company’s main activity (Cass. soc., 16 May 2012, no. 11-11.100, published in the Bulletin).

On 5 July last, the Cour de cassation handed down a ruling in line with its case law, which distinguishes between :

• determining which collective agreement applies, depending on whether the relationship is collective or individual;
• the nature of the presumption of applicability of a collective agreement when it is mentioned on the pay slip or when reference is made to it in the employment contract.

I. Facts and procedure

On 1^st January 2014, an employee was hired as a reporter-photographer under a part-time employment contract that referred to the collective agreement for press agencies.

The company employed reporters-photographers to build up a bank of horse racing images and sell the reports to various clients.

In view of his main activity, the national collective agreement for journalists therefore applied to the employee, notwithstanding the wording of his contract.

In 2017, the latter brought claims before the labour court relating to the performance of his employment contract.

In support of these claims, he invoked the application of the collective agreement for press agencies, which was mentioned in his employment contract.

On appeal, the judges ruled that they had to make a specific assessment of the nature of the principal activity carried out and that the mere mention of the press agency collective agreement in the contract was not sufficient to allow it to be applied.

The employee therefore appealed to the French Supreme Court, claiming a breach of Article 1134 of the Civil Code in its version prior to Order no. 2016-131 of 10 February 2016 (“Legally formed agreements take the place of the law for those who have made them“).

II. The binding force of the contract in determining the collective agreement applicable to the individual employment relationship

The Court of Cassation upheld the employee’s appeal and censured the decision of the appeal judges, applying the principle of the binding nature of the contract.

The High Court began by pointing out that, in collective relations, a single collective agreement applies, which is determined by the criterion of the company’s main economic activity.

Secondly, it also points out that, on an individual level, the employee may request the application of the one mentioned in the contract of employment, specifying where applicable that this reference constitutes recognition of its application.

In these circumstances, the judges of the Cour de cassation :

• held that by using the criterion of the company’s principal activity to consider that the employee was subject to the collective labour agreement for journalists, the Court of Appeal had violated the principle of the binding nature of the contract;
• note that the reference in the employment contract to the collective agreement for press agencies is tantamount to recognition of its applicability to the employee.

III. The scope

In other words, the inclusion of a collective agreement in the employment contract obliges the employer to apply it to the employee who requests it, unless the parties agree by mutual agreement to set it aside in accordance with the corollary of the binding nature of the contract: the principle of “equal treatment”. mutus dissensus (« what the parties have done jointly, they can undo in the same way »).

In this ruling, the Court remained faithful to its case law (Cass. soc., 16 May 2012, no. 11-11.100, published in the Bulletin; Cass. soc., 4 March 2020, no. 18-11.584, Unpublished).