Dismissal: when Hollande does Sarkozy

THE ECO SCAN – In three years, the President of the Republic has changed his mind on employment retention agreements. In the plan for employment in the TPE, he accepts a measure proposed during the presidential election by Nicolas Sarkozy that he saw as “a dismantling” of the 35 hours.

In the de, we focused a lot on the cap on redundancies and on the bonus of 4000 euros over two years in the event of hiring a first employee. But there is another measure, number 6, which makes unions and rebels jump: “to promote the preservation of employment in the event of economic difficulties”. This measure relates to employment maintenance agreements (AME), set up by the employment security law of June 2013. It is an invention of the social partners which “allows companies in the event of serious difficulties to adjust working time and wages in the event of agreement by the majority of employees for a period of two years at most, ”recalls the Prime Minister in the presentation of his plan. In short, to lower wages or increase working hours while the storm is passing. And this, with the blessing of the unions.

Problem: AMEs flopped, with just nine signings in less than two years, including 8 in SMEs. Deemed too rigid, legally complicated (especially for employees who would refuse the terms of the signed AME) and not long enough, they did not find takers and the social partners agreed, during their recent review of the security law employment, to change the terms. The employers, in particular, demanded to pass to “offensive” agreements, that is to say that can be concluded even by companies in good financial health, or to lengthen their lifespan.

“The challenge is to allow everyone to appropriate this alternative to dismissal […] by providing solid guarantees for employees ”

Tout Pour l’Emploi in VSEs and SMEs, measure 6, page 12

The employers’ camp was partially heard. Manuel Valls has indeed agreed with them by extending the duration of the AME from 2 to 5 years. “The current period of two years is sometimes too short to allow the restoration of competitiveness, especially as the time for negotiations can exceed six months”, justify the services of the Prime Minister. Better, the agreement can even now “provide for the terms and conditions under which it can be revised or suspended” along the way.

But the most unexpected provision – and which makes the unions jump, which had always refused the employers who demanded it from the start – is to be able to apply to employees who would refuse the terms (that is to say who would oppose a reduction in their wages or an increase in their working time) a “sui generis dismissal”. Quézaco? This amounts to saying that the refusal of an employee to have the terms of the AME applied is a cause of “individual dismissal not based on an economic reason”.

“The reason for dismissal will be the fact of having refused to have the employment maintenance agreement applied”

Tout Pour l’Emploi in VSEs and SMEs, measure 6, page 12

The consequences are significant and it is therefore easier to understand that the employers are delighted. Not only will the departure of the employee give rise only to “payment of legal and contractual compensation for dismissal”, the reason for dismissal being constituted by the sole fact of having refused to have the AME applied. In other words, the collective agreement takes precedence over the individual employment contract, an inversion of the hierarchy of standards that the employers have been claiming for a long time. And if more than 10 employees refuse the AME, provide individual support measures, which was the case today and discouraged more than one boss from negotiating an AME with his unions.

“From now on, employees will practically be considered at fault by refusing a reduction in remuneration and they will no longer be entitled to support measures and reclassification to a new job”, denounces Stéphane Lardy, confederal secretary at FO. The same wonders about government coherence on this subject. “When the bill for growth, activity and equal economic opportunities was passed to first reading in the National Assembly, the government did not support the opposition’s amendments on this subject but took it back. today on his own, on the pretext of supporting employment in very small businesses, ”he recalls, furious at the dirty blow that Manuel Valls has just done to the unions. For the CGT, this provision – like the 17 others of the Valls plan – has only one goal: “that of reducing by all means the price of the value of labor for the best profits of some, who not necessarily small businesses ”.

“This will have the consequence that there will no longer be a legal working time since employers and social partners, who will agree, I agree, will consider that there is no longer any legal working time. work. So, here too, we are going towards the dismantling of a principle which was that of the legal working hours ”

François Hollande, May 3, 2012

It now remains for left-wing parliamentarians to vote for this measure proposed by the right in 2012 – it should pass thanks to article 49-3, which will be applied to the Macron law in which this provision will be incorporated – and against which it was , at the time, violently opposed. “There will no longer be a legal working time since employers and social partners who will agree, I agree, will consider that there is no longer any legal working time”, then condemned the socialist candidate to the presidential, during the debate between the two rounds against Nicolas Sarkozy. The current president even saw there “a dismantling” of the 35 hours! He has visibly changed his mind in three years, since today he takes up his sworn enemy’s proposal …