LexInter | October 25, 2005 | 0 Comments

DEVELOPMENT OF NEW FORMS OF EMPLOYMENT

Article 59

The first paragraph of Article L. 161-1-1 of the Social Security Code is supplemented by two sentences worded as follows:

“The duration of the exemption, total or partial, may be extended under the conditions and limits set by decree when the company created or taken over falls within the scope of article 50-0 of the general tax code. The same applies when the persons mentioned in the first paragraph have opted for the regime provided for in article 102 ter of the same code. ”

Article 60


I. – Section II of article L. 5214-16 of the general code of local authorities is thus amended:

1 ° In the first paragraph, the word: “four” is replaced by the word: “five”;

2 ° It is supplemented by two paragraphs thus worded:

“5 ° Social action of community interest.

“When the community of municipalities exercises the competence for social action of community interest, it can entrust the responsibility for all or part of it to an intercommunal center for social action set up under the conditions set out in Article L. 123-5 of the Code. social action and families. ”

II. – II of article L. 5216-5 of the same code is amended as follows:

1 ° In the first paragraph, the word: “five” is replaced by the word: “six”;

2 ° Before the last paragraph, two paragraphs are inserted as follows:

“6 ° Social action of community interest.

“When the agglomeration community exercises the competence for social action of community interest, it may entrust the responsibility for all or part of it to an inter-municipal social action center set up under the conditions set out in Article L. 123-5 of the code of social action and families. ”

III. – The last paragraph of Article L. 123-5 of the Social Action and Families Code is replaced by three paragraphs worded as follows:

“A public inter-municipal cooperation establishment may create an inter-municipal social action center to exercise the competence for social action of community interest which has been transferred to it.

“The powers exercised by the social action centers of the municipalities that are members of the public establishment of inter-municipal cooperation which fall within the social action of community interest mentioned in the previous paragraph are automatically transferred to the inter-municipal social action center, when it was created.

“All or part of the other powers exercised by the social action centers of the municipalities that are members of the public inter-municipal cooperation establishment may also be transferred to the inter-municipal social action center. This transfer is decided by concordant deliberations of the deliberative body of the public establishment of inter-municipal cooperation and of the municipal councils, ruling under the majority conditions required for the creation of the public establishment of inter-municipal cooperation, and unanimously. social action centers in the municipalities concerned. ”

IV. – The communities of communes and agglomeration communities which created an intercommunal social action center before the entry into force of this law must comply with the provisions of the said law by December 31, 2006 at the latest

. – Inter-municipal social action centers created before the entry into force of this law by public institutions for inter-municipal cooperation that do not have their own taxation continue to exercise, for the municipalities concerned, the powers mentioned in the first to fourth paragraphs of article L. 123-5 of the code of social action and families.

Article 61


After article 200 septies of the general tax code, an article 200 octies is inserted as follows:

“Art. 200 octies. – I. – Taxpayers domiciled in France may benefit from a tax reduction for the assistance they provide to persons registered as job seekers or holders of the minimum integration income, of the allowance for single parents or allowance for disabled adults, who create or take over an industrial, commercial, craft, agricultural or liberal enterprise, either individually or in the form of a company of which they effectively exercise control.

“The taxpayer must provide assistance for all the due diligence and procedures that must be carried out for the creation or takeover of the company and the start of its activity. To this end, he must provide proof of professional experience making him suitable for this function. He cannot help more than two people simultaneously.

“An agreement for a renewable period of one year is concluded between the taxpayer, the creator of the company and an employment center mentioned in article L. 311-10 of the labor code to which the latter falls. The employment center informs the parties about their respective obligations and monitors compliance. It issues the taxpayer with a document attesting to the proper execution of the agreement when it ends.

“II. – The tax reduction, in a flat-rate amount of EUR 1,000, is granted for the year in which the agreement ends.

“III. – A decree in the Council of State fixes the modalities of application of this article, in particular:

“1 ° The specifications to which the tripartite agreement must comply;

“2 ° The obligations of the taxpayer and of the beneficiary of the aid;

“3 ° The conditions for the renewal of the agreement;

“4 ° The supervisory powers of the employment office and the supporting documents that taxpayers must provide to benefit from the tax reduction. ”

Article 62


After article L. 321-12 of the labor code, an article L. 321-12-1 is inserted as follows:

“Art. L. 321-12-1. – A collective branch or company agreement determines the employment contracts concluded for the performance of an export mission carried out mainly outside the national territory, the termination of which at the initiative of the employer at the end of the assignment is not subject to the provisions of this chapter. “The agreement fixes in particular: ” – the categories of employees concerned; “- the nature of the export missions concerned as well as their minimum duration, which may not be less than six months;

“- the compensation in terms of compensation and termination indemnity granted to employees, without this indemnity being less than the amount of the legal termination indemnity granted pro rata temporis without any seniority condition and regardless of the workforce of the company;

“- guarantees in terms of training for the employees concerned;

“- the measures essential to the reclassification of employees.

“If it is a collective branch agreement, it also sets the size and type of companies concerned.

“The provisions in terms of social protection of the branch or

“The redundancies mentioned in the first paragraph are subject to the provisions of section 2 of chapter II of title II of book I. ”

Article 63


After article L. 322-4 of the labor code, an article L. 322-4-1 is reinstated as follows:

“Art. L. 322-4-1. – The employment centers mentioned in article L. 311-10 participate, under conditions set by decree, in the implementation of the reclassification actions of the National Employment Fund provided for in articles L. 322-1 and following.

“They may also participate, under conditions set by agreement with the companies concerned, in the implementation of the measures provided for in Articles L. 321-4-1, L. 321-4-2, L. 321-4 -3 and L. 321-16. ”

Article 64


After article L. 124-2-1 of the labor code, an article L. 124-2-1-1 is inserted as follows:

“Art. L. 124-2-1-1. – The provision of an employee of a temporary employment company to a user may also take place:

“1 ° When the temporary employment assignment aims, in application of legislative or regulatory provisions, or an agreement of extended branch, to facilitate the hiring of unemployed persons encountering particular social and professional difficulties;

“2 ° When the temporary employment company and the user undertake, for a period and under conditions fixed by decree or by extended branch agreement, to provide additional professional training to the employee. ”

Article 65


The first paragraph of Article L. 263-2 of the Code of Social Action and Families is supplemented by a sentence worded as follows:

“It also includes representatives of the departmental committee responsible for employment and integration. mentioned in Article L. 322-2-1 of the Labor Code. ”

Article 66


After article L. 322-4-16-7 of the labor code, an article L. 322-4-16-8 is inserted as follows:

“Art. L. 322-4-16-8. – Workshops and integration projects are devices carried by a municipal or inter-municipal social action center or by a private non-profit organization having as its object the hiring of people mentioned in I of article L. 322-4-16 in order to facilitate their social and professional integration, by developing activities mainly of a social utility character, and which has concluded with the State an agreement referred to in the aforementioned article.

“Workshops and integration projects ensure the reception, hiring and putting to work on collective actions of people mentioned in I of article L. 322-4-16 and organize follow-up, support, technical supervision and training of their employees with a view to facilitating their social integration and seeking the conditions for lasting professional integration. ”

Article 67


Title VII of Book VII of the Labor Code is supplemented by Chapter IV as follows:
“Chapter IV
“Educators and family helpers
“Art. L. 774-1. – Family educators employed by associations managing children’s villages authorized under Article L. 313-1 of the Code of Social Action and Families practice, in accommodation made available for this purpose by the association, a permanent responsibility with siblings of children.

“Family helpers employed by associations managing children’s villages authorized under the same article L. 313-1 exercise, in accommodation made available for this purpose by the association, the responsibility of replacing or replacing educators. families with siblings of children.

“Educators and family assistants are not subject to the provisions of Chapters II and III of Title I of Book II, nor to those of Preliminary Chapters and I of Title II of the same book of this code.

“Their working time is fixed by collective agreement or company agreement, in number of days on an annual basis.

“The convention or collective agreement must set the number of days worked, which may not exceed an annual ceiling of two hundred and fifty-eight days, and determine the procedures for monitoring the organization of the work of the employees concerned.

“The employer must keep at the disposal of the labor inspector, for a period of three years, the document or documents existing in the association allowing the number of days of work performed by employees to be counted. When the number of days worked exceeds the annual ceiling set by the convention or agreement, after deduction, where applicable, of the number of days allocated to a time savings account and of the paid leave carried over under the conditions provided for in article L. 223-9, the employee must benefit, during the first three months of the following year, from a number of days equal to this overrun. This number of days reduces the annual limit for the year in which they are taken. ”

Article 68


I. – Article L. 213-1-1 of the Labor Code is supplemented by a paragraph worded as follows:

“By way of derogation from the first paragraph, for editorial and industrial production activities of the press, radio, television, film production and exploitation, live shows and disco, the night period is fixed between 24 hours and 7 hours. Another period of night work may be fixed by an agreement or an extended branch collective agreement, a company or establishment agreement. This substitution period must in any case include the interval between 24 hours and 5 hours. ”

II. – After the second paragraph of article L. 213-4 of the same code,

“For the activities referred to in the third paragraph of Article L. 213-1-1, when the actual duration of night work is less than the legal duration, the compensation referred to in the two paragraphs above is not necessarily given under form of compensatory rest. ”

Article 69


After the third paragraph of Article L. 212-4 of the Labor Code, a paragraph is inserted as follows:

“Professional travel time to go to the place of performance of the employment contract is not a actual working time. However, if it exceeds the normal travel time between home and the usual place of work, it must be compensated either in the form of rest, or financial, determined by convention or collective agreement or, failing that , by unilateral decision of the employer taken after consultation of the works council or staff representatives, if they exist. The share of this business travel time coinciding with the work schedule must not result in loss of wages. ”

Article 70


After 15 ° of Article L. 934-2 of the Labor Code, a 16 ° is inserted as follows:

“16 ° The definition and the conditions for optional implementation of economic training actions with a view to to better understand the management and objectives of the company in the context of international competition. ”

Article 71


I. – The provisions of the Commercial Code and the Labor Code resulting from Articles 96, 97, 98, 100 and 106 of Law No. 2002-73 of 17 January 2002 on social modernization and whose application was suspended by article 1 of law n ° 2003-6 of January 3, 2003 relaunching collective bargaining in terms of redundancies, amended by law n ° 2004-627 of June 30, 2004, are repealed. The provisions of the labor code amended by articles 99, 102, 104, 109 and 116 of the aforementioned law n ° 2002-73 of 17 January 2002 are restored in their wording prior to this same law.

However, the second paragraph of Article L. 321-3 of the Labor Code reads as follows:

“In the companies or professions mentioned above, where at least fifty employees are usually employed, the employers who plan to make a dismissal there under the conditions referred to in the preceding paragraph are required to meet and consult the committee of business. They may carry out these operations simultaneously with the implementation of the consultation procedures provided for in Article L. 432-1. ”

II. – In Article L. 321-9 of the Labor Code, the words: “L. 321-4-1, with the exception of the second, third and fourth paragraphs” are replaced by the words: “L. 321- 4-1, with the exception of the second paragraph ”.

Article 72


I. – In Title II of Book III of the Labor Code, the preliminary chapter is entitled: “Management of employment and skills. Prevention of the consequences of economic change ”; it is supplemented by two articles L. 320-2 and L. 320-3 thus worded:

“Art. L. 320-2. – In companies and groups of companies within the meaning of II of Article L. 439-1 which employ at least three hundred employees, as well as in companies and groups with a community dimension within the meaning of the second and third paragraphs of the Article L. 439-6 comprising at least one establishment or company with 150 employees in France, the employer is required to initiate negotiations every three years on the terms of information and consultation of the committee. company on the strategy of the company and its foreseeable effects on employment as well as on wages. The negotiation also covers the establishment of a provisional management system for jobs and skills as well as the accompanying measures that may be associated with it, in particular in terms of training, validation of acquired experience, skills assessment as well as support for professional and geographic mobility of employees. It may also relate, in accordance with the procedures provided for in Article L. 320-3, to the matters mentioned in this article.

“If a group agreement is concluded on the topics included in the scope of the three-year negotiation referred to in the previous paragraph, the companies included in the scope of the group agreement are deemed to have satisfied the obligations of the same paragraph.

“Art. L. 320-3. – Company, group or branch agreements may set, by way of derogation from the provisions of this book and Book IV, the terms of information and consultation of the works council applicable when the employer plans to pronounce the dismissal of at least ten employees over the same period of thirty days.

“These agreements set the conditions under which the works council is met and informed of the economic and financial situation of the company, and can formulate alternative proposals to the economic project at the origin of a restructuring having an impact on the company. employment and obtain a motivated response from the employer to its proposals. They can organize the implementation of professional and geographic mobility actions within the company and the group.

“These agreements may also determine the conditions under which the establishment of the employment safeguard plan mentioned in Article L. 321-4-1 is the subject of an agreement, and anticipate the content thereof. .

“The agreements provided for in this article may not derogate from the provisions of the third paragraph of article L. 321-1, those of the first eleven paragraphs of article L. 321-4, nor those of articles L. 321- 9 and L. 431-5.

“Any action in dispute relating to all or part of these agreements must be brought, on pain of inadmissibility, before the expiration of a period of three months from the date of completion of the formality provided for in the first paragraph of l Article L. 132-10. However, this period is extended to twelve months for agreements which determine or anticipate the content of the employment safeguard plan mentioned in article L. 321-4-1. ”

II. – 1. Sub-section 2 of section 3 of chapter II of title III of book I of the same code is entitled: “Compulsory negotiation”.

2. The second paragraph of Article L. 132-27 of the same code reads as follows:

“In companies employing at least three hundred employees, as well as in the companies mentioned in Articles L. 439-1 and L. 439-6 together employing at least three hundred employees, the negotiation relating to the terms of information and consultation of the works council on the overall strategy of the company and on the forward-looking management of employment and skills provided for in Article L. 320-2 also relates to the conditions for accessing and maintaining employment older employees and their access to vocational training. ”

III. – After article L. 132-12-1 of the same code, an article L. 132-12-2 is inserted as follows:

“Art. L. 132-12-2. – The organizations mentioned in article L. 132-12 meet every three years to negotiate on the matters defined in article L. 320-2. ”

IV. – The first paragraph of article L. 930-1 of the same code is supplemented by a sentence worded as follows:

“It can offer training courses that participate in the fight against illiteracy. ”

Article 73


I. – In the first paragraph of Article L. 321-1 of the Labor Code, the words: “of a substantial modification of the employment contract” are replaced by the words: “of a modification, refused by the employee , an essential element of the employment contract ”.

II. – The first paragraph of article L. 321-1-2 of the same code reads as follows:

“When the employer, for one of the reasons set out in article L. 321-1, considers modifying an essential element of the employment contract, he makes a proposal to the employee by registered letter with acknowledgment of receipt. ”

III. – Article L. 321-1-3 of the same code is worded as follows:

“Art. L. 321-1-3. – When at least ten employees have refused the modification of an essential element of their employment contract proposed by their employer for one of the reasons set out in Article L. 321-1 and their dismissal is envisaged, this this is subject to the provisions applicable in the event of collective redundancy for economic reasons. ”

Article 74


I. – Article L. 321-4-2 of the labor code reads as follows:

“Art. L. 321-4-2. – I. – In companies not subject to the provisions of Article L. 321-4-3, the employer is required to offer each employee whose dismissal he intends to pronounce for economic reasons the benefit of a personalized reclassification allowing him to benefit, after termination of his employment contract, from psychological support, guidance, support, assessment of professional skills and training intended to promote his reclassification.

“By way of derogation from the provisions of Article L. 933-6, these actions can in particular be implemented and financed by the use of the remainder of the rights that the employee has acquired on the date of termination of his contract, under the individual right to training provided for in Article L. 933-1. The duration of the rights corresponding to this remainder, capped at twenty hours per year of seniority and 120 hours over six years, is doubled. However, the training allowance provided for in article L. 933-4 is not due.

“The employee is placed under the status of vocational training trainee during the execution of the personalized reclassification agreement.

“If the employee agrees, the employment contract is deemed to be terminated by mutual agreement of the parties. This termination of the employment contract, which does not include a notice period or notice indemnity, gives rise to the right to the indemnity provided for in article L. 122-9.

“An agreement concluded and approved under the conditions provided for in Article L. 351-8 defines the terms and conditions of application of the provisions of the preceding paragraphs, in particular the formalities and deadlines for the employee’s response to the proposal for a personalized reclassification agreement made. by the employer, the duration of this agreement and the terms of its possible adaptation to the specificities of the companies and the situations of the employees concerned. It also determines the content of psychological support, guidance, evaluation, support and training actions, the methods by which they are financed, in particular under the individual right to training, and implemented by the ” one of the organizations mentioned in Articles L. 311-1 and L. 311-10 as well as the amount of the allowance paid to the beneficiary by the organizations mentioned in article L. 351-21. The employer contributes to the financing of the allowance by a payment to these organizations equivalent to at least two months’ salary of the person concerned.

“The agreement also defines the conditions under which the same organizations and employers participate in the financing of the actions provided for in the previous paragraph. It may provide for the seniority conditions required of the employee to benefit from the provisions of this article.

“In the absence of agreement or approval of this agreement, the implementing measures of this I and their financing methods are fixed by decree in the Council of State.

“As part of an agreement with the organizations mentioned in Article L. 351-21, the State contributes to the financing, in particular under the individual right to training, of expenses relating to actions undertaken within the framework of the personalized reclassification agreement.

“II. – Any employer not subject to the provisions of Article L. 321-4-3 who terminates an employee for economic reasons without offering him the benefit of a personalized reclassification agreement must pay to the organizations mentioned in article L. 351-21 a contribution equal to two months of average gross salary for the last twelve months worked. ”

II. – After the word: “article”, the end of the second paragraph of article L. 961-1 of the same code reads as follows: “L. 351-21 also contribute to it, in particular under the conditions provided for in article L . 321-4-2. ”

III. – 1. In Articles L. 131-2, L. 135-2, L. 311-5, L. 351-3 and L. 412-8 of the Social Security Code, the reference: “L. 322- 3 “is replaced by the reference:” L. 321-4-2 “.

2. In article L. 412-8 of the same code, the word: “conversion” is replaced by the word: “reclassement”.

Article 75


After article L. 321-15 of the labor code, an article L. 321-16 is inserted as follows:

“Art. L. 321-16. – Any summary action relating to the regularity of the consultation procedure must, on pain of inadmissibility, be brought within a period of fifteen days following each meeting of the works council.

“Any dispute relating to the regularity or validity of the dismissal is prescribed by twelve months from the last meeting of the works council or, within the framework of the exercise by the employee of his individual right to contest the regularity or the validity of the dismissal, from the notification thereof. This period is only enforceable against the employee if it has been mentioned in the letter of dismissal. ”

Article 76


I. – After article L. 321-15 of the labor code, an article L. 321-17 is inserted as follows:

“Art. L. 321-17. – I. – When they proceed to a collective redundancy affecting, by its scale, the balance of the employment area (s) in which they are located, the companies mentioned in Article L. 321-4-3 are required to , except when they are the subject of judicial reorganization or liquidation proceedings, to contribute to the creation of activities and the development of jobs and to mitigate the effects of the planned dismissal on other companies in the employment pools. The amount of their contribution may not be less than twice the monthly value of the minimum growth wage per job cut. However, the representative of the State may fix a lower amount when the

“An agreement between the company and the representative of the State, concluded within six months from the completion of the formality provided for in the first paragraph of Article L. 321-7, determines, where applicable on the basis of a social and territorial impact study prescribed by the representative of the State, the nature as well as the methods of financing and implementation of the actions provided for in the previous paragraph. This agreement takes into account actions of the same nature that may be provided for in the context of the employment protection plan established by the company. When a collective group, company or establishment agreement provides for actions of this kind, accompanied by financial commitments from the

“In the absence of a signed convention or collective agreement taking its place, companies pay the public treasury a contribution equal to double the amount provided for in the first paragraph.

“II. – When a collective redundancy effected by a company employing at least fifty employees and not subject to the provisions of Article L. 321-4-3 affects, by its extent, the balance of the employment area (s) in which that – here is established, the representative of the State, after having, if necessary, prescribed a social and territorial impact study which takes into account the observations made by the aforementioned company, intervenes for the implementation, in consultation with the organizations mentioned in Article L. 311-1 and, where applicable, with the employment center (s), actions likely to allow the development of

“The company and the representative of the State define by mutual agreement the terms according to which the company takes part, if necessary, in these actions, taking into account in particular its financial situation and the number of jobs lost.

“The provisions of the previous paragraph are not applicable to companies in receivership or liquidation.

“III. – The actions provided for in I and II are determined after consultation with the local authorities concerned, consular bodies and social partners who are members of the regional inter-professional joint committee. Their execution is subject to monitoring and evaluation, under the authority of the State representative, in accordance with procedures set by decree.

“This decree also determines the conditions under which companies whose head office is not located in the employment area affected by the collective redundancy contribute to the planned actions.

“IV. – The procedures provided for in this article are independent of those provided for in Articles L. 321-2 to L. 321-4-1. ”

II. – Article 118 of the aforementioned law n ° 2002-73 of January 17, 2002 is repealed.

Article 77

I. – The first sentence of the second paragraph of Article L. 434-3 of the Labor Code is replaced by three sentences worded as follows:

“The agenda is set by the business manager and the secretary. However, when consultations made compulsory by a legislative or regulatory provision or by a collective labor agreement are involved, they are entered there as of right by one or the other. It is communicated to the members at least three days before the meeting. ”

II. – The penultimate paragraph of article L. 435-4 of the same code reads as follows:

“The agenda is set by the business manager and the secretary. However, when consultations made compulsory by a legislative or regulatory provision or by a collective labor agreement are involved, they are entered there as of right by one or the other. It is communicated to the members at least eight days before the meeting. ”

III. – After article L. 432-1 bis of the same code, an article L. 432-1 ter is inserted as follows:

“Art. L. 432-1 ter. – By way of derogation from Article L. 431-5, the business manager is not required to consult the works council before the launch of a public takeover bid or a public exchange offer relating to the capital of a company. On the other hand, it must convene the works council within two working days following the publication of the offer in order to send it written and precise information on the content of the offer and on the consequences in terms of employment. ‘she is likely to result. ”

IV. – The first paragraph of Article L. 431-5 of the same code is supplemented by the words: “, except in the case where the employer uses the right conferred on him by the

V. – The first paragraph of Article L. 122-14-4 of the same code is thus amended:

1 ° The third and fourth sentences are replaced by a sentence worded as follows:

“When the court finds that the dismissal has occurred then that the dismissal procedure is null and void, in accordance with the provisions of the fifth paragraph of Article L. 321-4-1, he may declare the dismissal void and order, at the employee’s request, the continuation of his employment contract, unless reinstatement has become impossible, in particular due to the closure of the establishment or site or the absence of a job available such as to allow the employee to be reinstated. “;

2 ° In the last sentence, after the words: “employment contract”, the words: “or when reinstatement is impossible” are inserted.

Article 78


The provisions of Article L. 320-3 of the Labor Code in their wording resulting from the provisions of Article 72, as well as the provisions of the Labor Code resulting from Articles 73, 75, 76 and 77 are applicable to the procedures of dismissal from the date of enactment of this law.

For the purposes of this article, a dismissal procedure is deemed to have been initiated on the earlier of the following dates:

– the date on which the summons to the hearing provided for in article L. 122-14 of the same code is made;

– the date on which the first invitation to the consultations referred to in Article L. 321-2 of the same code is made;

– where applicable, the meeting to which the works council is convened, in the case referred to in 2 ° of the aforementioned article L. 321-2, for the application of article L. 432-1 of the same code .

Article 79


A report is tabled by the Government in Parliament two years after the promulgation of this law. This report concerns the application of the provisions of Articles 72 to 77. It analyzes the evolution of the social dialogue developed in application of Articles L. 320-2 and L. 320-3 of the Labor Code and employment management. in companies covered by agreements concluded in application of these articles; it traces the evolution of redundancies, collective procedures and employment protection plans during this period with regard to previous years, as well as the conditions for implementing the alternative solutions provided for in article L. 321- 1 of the same code;

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