2024-01-30 10:02:49
About Louise Darbon
Published on 01/18/2024 at 6:30 p.m., Updated 2 hours ago
The Confederation of Small and Medium Enterprises (CPME) estimates that the decision of the Court of Cassation on work stoppages would cost between 2 and 3 billion euros per year for companies. Philippe Turpin/Photononstop / Philippe Turpin/Photononstop
The Sages of rue Montpensier must determine today whether the French Labor Code, which establishes a link between the employee’s actual activity and the acquisition of paid leave, is consistent with both health law and the principle of equality before the law.
A new stone appears in the shoes of French companies, against a backdrop of gloomy economic conditions. Because if French labor law clearly states that work stoppages due to health do not give the right to paid leave, European law says the opposite. However, the rigorous Court of Cassation delivered a judgment, on September 13, 2023, to put an end to this contradiction. She declared that, in accordance with a 2003 European directive, any sick leave now generated rights to paid leave. But she did not stop there, pronouncing the retroactivity of the measure. Today, the Constitutional Council, seized of two priority questions of constitutionality (QPC), is therefore working on the question. It will indeed have to determine whether the French Labor Code, which – at present – establishes a link between the employee’s actual activity and the acquisition of paid leave, complies with the principle of equality before the law and protection of health. employees. If the decision of the Constitutional Council will not call into question the judgments of the Court of Cassation, employers, very worried about the consequences of a change in labor law, hope that it will succeed in limiting the application of this European directive. , especially over time.
Because the latter could have cascading effects for French companies. Employees on sick leave can indeed request from their company the leave due for this reason, but they can also claim these rights to paid leave for their previous work stoppages. And this, even if the employment contract has ended. An employer may therefore be forced to write a check to a former employee to compensate for past damage. Some employee unions approach the subject with caution. Employees are certainly entitled to it, but “a massive demand for the allocation of these paid leave rights could potentially generate operational and cash flow problems for companies, which we cannot ignore”, underlines, for example, the CFTC.
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“It’s potentially dramatic,” is alarmed by Alain Gargani, director of the events company AOS. “This is a potential financial burden that falls on us in a completely unforeseen wayworries the Marseille boss. No business leader has included such a charge in their forecast. » And although Alain Gargani admits to having little absenteeism in his company, he has been faced with long-term stoppages in the past. “With the principle of retroactivity, this becomes impossible. We could have to pay 30,000 to 40,000 euros in the event of requests from ex-employees. A sum that would necessarily require a small business to increase its margins, even though we are going through difficult economic times. he says.
Work value
Furthermore, for Alain Gargani as for many bosses, this rule risks “undermining the value of work, and sending the wrong signal to working employees”does he think. “It’s an aberration to get leave when you’re not working. And now is not the time at all.”agrees a manager of an adapted company (employing at least 55% disabled workers) in the textile field. “I employ 75% of people who have integration difficulties, and that is the strength of my company, explains the one who prefers to remain discreet. But these are also populations who are in situations of greater fragility and therefore more likely to be on leave. »
In his company of around thirty employees, several have been on sick leave for more than a year. “These are companies that are threatened with bankruptcy, it’s panic for some,” she alerts. “We would like to set aside sums, but it is impossible for an SME like mine given the economic situation”laments the business manager, who would prefer to devote her cash flow to bonuses or investments to improve the working conditions of her employees. “I have very collaborative management and I help my employees. But if I receive such requests, I don’t see how I can respond to them,” adds William Wafo, boss of an industrial maintenance company in the West, particularly opposed to the principle of retroactivity.
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But for the business manager, this weight which is added to the difficulties of companies hides a fundamental problem, even more serious. “We are told that this is a harmonization. But when will European social systems be harmonized? “, asks the person who recalls how advantageous the French social system is. “And it is in part French companies which pay, via much higher social charges than their European neighbors, which undermine our competitiveness. Beyond the specific point of paid leave acquired during sick leave, our real fight must be for the competitiveness of France in Europe. »
In support of SMEs, the Confederation of Small and Medium Enterprises (CPME) is fighting to limit the consequences of such a measure, estimated at between 2 and 3 billion euros per year for businesses. The petition she launched collected some 25,000 signatures. While awaiting the conclusion of the Constitutional Council which is working on the subject today but whose decision we will not know immediately, the employers’ organization was able to count on the support of former Prime Minister Élisabeth Borne, who was engaged at the Impact PME show, in November, at “minimize the impact of this decision as much as possible”. Companies now hope that Gabriel Attal will take up this promise.
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