1) The assessment of the reality of senior management status in the light of the contractual context

On the occasion of the aforementioned decision of May 30th, 2018 (No. 16-25557), an employee, a chartered accountant, attempting to get out of the qualification of senior executive argued that it should have been specified in writing to be enforceable by his employer. To this end he relied on various provisions of the collective agreement then applicable to his employment contract. In this case, the Court of Cassation sweeps this argument, stating that the collective agreement invoked provided no provision "subordinating the exclusion, for senior management, from the regulation of hours of work, the existence of a written contractual document ".

On the contrary, when in the decision of  September 7th, 2017 (n ° 15-24725) (8), the Court of Cassation notes that the employee, responsible for a profit center, was subject to an individual flat-rate agreement. The consequence is that the agreement between the parties excludes the quality of senior executive. In addition, it was established that "the parties had signed an undertaking pledge stating" your employment in the executive category is governed by an annualization agreement of working time on the basis of 218 days ". Thus, the Court of Cassation goes so far as to state that the Court of Appeal "did not have to carry out a search on the possible quality of senior manager of the employee". It had therefore "supremely deduced the existence of overtime".

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Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris

Claire Chardès juriste

e-mail : chhum@chhum-avocats.com




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