Latest legislative developments in the Labour Market Bill

The National Assembly adopted on 15 November 2022 the compromise text drawn up in the Joint Committee by the Deputies and Senators on 9 November. This adoption was not certain, especially in view of the novelties introduced by the Senators, and more particularly the one concerning the refusal of an open-ended contract which could lead to the suppression of the unemployment benefit. On 17 November, it will be up to the Senators to vote on this text, it being specified that it is highly likely that the Constitutional Council will then be asked to verify its conformity with the Constitution. To date, therefore, this text has not yet been promulgated.

• One of the key provisions introduced in this labour market bill by the Members of Parliament during the public session of 6 October is the creation of a new article L.1237-1-1 in the Labour Code on abandonment of post.

We also spoke at length about this new provision in our last news item of October 2022, and we recall that the main objectives are

• on the one hand, that an employee who abandons his or her job can no longer receive unemployment benefit,
• secondly, to limit employees' recourse to the practice of abandoning their post when they wish to end their employment relationship.

After several rewrites of Article L.1237-1-1 of the Labour Code, the framework of abandonment of post is now confirmed by the Joint Committee as follows: " An employee who has voluntarily abandoned his or her post and does not return to work after having been given formal notice to justify his or her absence and to return to his or her post, by registered letter or by letter delivered personally against a receipt, within the time limit set by the employer, shall be presumed to have resigned on expiry of this time limit. An employee who challenges the termination of his or her employment contract on the basis of this presumption may refer the matter to the industrial tribunal. The case goes directly to the adjudication board, which decides on the nature of the termination and the associated consequences. It shall decide on the merits within one month of the date of referral. "The period provided for in the first paragraph may not be less than a minimum set by decree in the Council of State. This decree shall determine the conditions of application of this article. " The slight modification of this text therefore lies essentially in the fact that the employer must, in his formal notice, set a time limit for the employee to justify his absence or to return to work, on the expiry of which he will be presumed to have resigned, it being specified that this time limit will be limited, since it will not The "minimum amount" may be lower than a minimum set by decree. Thus, the Joint Committee confirmed this new method of termination whereby the employer would no longer have to dismiss an employee who had abandoned his post, since the latter would be presumed to have resigned. Finally, it would seem that this abandonment of post becomes a form of "prise d'acte" for the employee who could then take the matter to the Conseil de prud'hommes to reverse the simple presumption of resignation. Although the setting of a minimum legal period during which the employee must justify his or her absence or return to his or her post provides a slightly better framework for this new procedure, many essential questions remain unanswered. In this respect, in particular, no clarification has been provided on the consequences of invalidating the resignation or on the procedure to be followed at the end of the employment contract.

• Another novelty, this time introduced by the Senators, drew our attention, namely that relating to the incentive for the beneficiaries of a fixed-term or assignment contract to accept the permanent contract offered to them or risk losing the benefit of unemployment compensation.

This new provision was the subject of much debate, but was finally retained by the Joint Committee. The text introduces two provisions, namely Article L.1243-11-1 of the Labour Code applicable to employees on fixed-term contracts, and Article L.1251-33-1 of the Labour Code applicable to employees on assignment contracts. These provisions are worded differently. Indeed:

• Concerning the employee with a fixed-term contract

The compromise text provides that if the latter has refused on two occasions a proposal for an open-ended contract within the last twelve months, he loses the benefit of his unemployment benefit, as soon as the offer of an open-ended contract is for the same or a similar job with at least equivalent pay for equivalent working time, in the same classification and with no change in the place of work.

• Concerning the employee on a mission contract

The text specifies that if the employee has twice refused an offer of an open-ended contract within the last 12 months, he or she loses the benefit of his or her unemployment benefit, if the offer of an open-ended contract is for the same or a similar job, without a change in the place of work. However, there are two exceptions to these rules (applicable to both fixed-term and temporary employees):

• if the employee was employed under a permanent contract during the same period;
• or if the last proposal sent to the jobseeker does not comply with the criteria set out in the personalised project for access to employment if this was drawn up before the date of the last refusal taken into account.

In addition, the text specifies that, concerning both employees on fixed-term contracts and temporary employees, the employer must notify the employee in writing of the offer of an open-ended contract and, if the employee refuses, inform Pôle emploi, justifying the similar nature of the job offered. As a result of this text, the guarantees appear to be less important for the employee under a mission contract, since Pôle emploi will only have to examine whether the positions offered were indeed aimed at occupying the same or a similar job, without changing the place of work. While this new provision once again demonstrates the legislator's determination to combat the casualisation of the world of work, it could nonetheless create difficulties for employees who, given their lifestyle or activity, prefer precarious contracts to permanent contracts. Also, this new provision will once again put the onus on the employer to decide whether or not to withhold unemployment benefits...