The movement of December 5th 2019, possibly with the aim of extending over the following days, will necessarily have consequences for the employees. Whether they are strikers or not, they have rights.
1) For employees who are going to work
In principle, the contract of employment continues normally: the employee is at the disposal of his employer and the employer provides work to his employee and remunerates him.
In practice, several obstacles can disrupt the normal execution of labor relations.
Whether on the initiative of the employee or his employer, several solutions are generally considered.
1.1. How to use telework (télé travail) ?
Telework must be set up within the company by collective agreement or by a charter.
Otherwise, the employer and the employee can agree on the use of this type of work organization (6).
When, in the first case, telework is provided for by collective agreement or by a charter, the employer may refuse but must give reasons for its decision.
In the end, telecommuting can be a solution that can be suggested to the company.
Since the September 2017 ordinances, telework is almost a right when it is casual.
If he wants to refuse, the employer must justify it, demonstrating that remote work disrupts the smooth running of the company.
1.2. Can the employer ask the employee to work overtime to deal with the absences of other employees?
The employer may require non-strikers to work overtime to deal with the absence of other employees.
Overtime is done at the request of the employer only. Not being considered as a modification of the contract of employment, the employee can not oppose this request of the employer, provided however that this request respects the allowed quota of overtime. (7)
1.3. How to manage absences and delays?
The non-striking employee who can not go to his place of work or who is late due to a strike action must notify his employer by any means (SMS, e-mail, LRAR) in accordance with the standard provisions rules of procedure in force in the company for example.
By providing proof, or at least informing his employer, the employee can avoid the risk of disciplinary action against him.
2) For employees who will strike
The right to strike is a right constitutionally provided for in the Preamble to the 1946 Constitution (1). Employees who exercise it enjoy protection. The notion of strike is however precisely framed by the judges.
2.1. What protection is conferred by the right to strike?
If the Labor Code is rather silent in terms of strike, it nevertheless provides in its article L. 2511-1 (2) that the strike employee is protected against:
- The rupture of work (except in case of gross negligence on his part)
- Discriminatory measures (in terms of social benefits and remuneration, in particular).
However, to benefit from these protections, one must fulfill the conditions that characterize the exercise of the right to strike.
2.2. Under what conditions are we protected?
• The cessation of work must be collective within the company
The first exception to this rule is the case of companies employing only one employee. The latter will be allowed to strike. (3) The other case of derogation concerns the employee who, even if he is the only one to strike in his company, participates in a national strike which supports professional demands. (4)
• The claims defended are of a professional nature
Purely political strikes, protesting against government policies, are firmly prohibited.
Rallying to a national movement, on the other hand, is possible provided that the demands placed on it relate directly to the workers.
For example, when the cessation of work is "intended to renegotiate the government pension reform project", it is considered to fall within the scope of the right to strike. (5)
- Préambule de la Constitution du 27 octobre 1946 : https://www.conseil-constitutionnel.fr/le-bloc-de-constitutionnalite/preambule-de-la-constitution-du-27-octobre-1946
- L. 2511-1, Code du travail : https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006902372&cidTexte=LEGITEXT000006072050&dateTexte=20080501
- Cass., Soc., 13 novembre 1996, n° 93-42.247 : https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007037544
- Cass., Soc., 29 mars 1995, n° 93-41863 : https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000007033757&fastReqId=2062082740&fastPos=1
- Cass., Soc., 15 février 2006, n° 04-45.738 : https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007050416
- L. 1229-2 et suivants, Code du travail : https://www.legifrance.gouv.fr/affichCode.do;jsessionid=687F109FBA33A27F3F8ADF0B7439566C.tplgfr25s_1?idSectionTA=LEGISCTA000025558058&cidTexte=LEGITEXT000006072050&dateTexte=20191204
- Cass., Soc., 9 mars 1999, n° 96-43.718 : https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007039616
Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris
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