Paragraph 1 Derogations from the daily working time
The maximum daily duration of eight hours fixed in article L. 3122-34 for employees exercising:
1 may be waived, by convention or extended branch collective agreement or by convention or company or establishment agreement. ° Activities characterized by the distance between the employee’s home and place of work or by the distance between different places of work of the employee;
2 ° Custody, surveillance and on-call activities characterized by the need to ensure the protection of property and people;
3 ° Activities characterized by the need to ensure continuity of service or production.
The maximum daily duration of eight hours may be waived with the authorization of the labor inspector, in the event of:
1 ° Facts resulting from circumstances foreign to the employer, abnormal and unforeseeable;
2 ° Exceptional events the consequences of which could not have been avoided.
The request for an exemption from the maximum daily working time, accompanied by the relevant justifications, the opinion of the works council or, failing that, the staff representatives, if there are any, and the minutes of consultation of the union representatives, if there are any, is sent by the employer to the labor inspector.
In the absence of a union representative, works council and staff representatives, the request is accompanied by a document attesting to prior information to the employees.
The exemption can only be granted by the labor inspector if rest periods of a duration at least equivalent to the number of hours worked beyond the maximum daily duration are allocated to the employees concerned. This rest is taken as soon as possible at the end of the period worked.
When, in exceptional cases, the benefit of this rest is not possible for objective reasons, an equivalent consideration making it possible to ensure appropriate protection for the employee concerned is provided for by collective labor agreement.
The hierarchical appeal lodged against the decision of the labor inspector is brought before the regional director of labor, employment and vocational training within a period of one month following the date on which the interested parties received notification.
The employer may waive, on his own responsibility, the maximum daily duration of eight hours when the circumstances mentioned in article R. 3122-10 involve:
1 ° The execution of urgent work in order to organize measures of rescue;
2 ° The prevention of imminent accidents;
3 ° The repair of accidents occurring to equipment, installations or buildings.
If he has not yet sent a request for exemption, the employer immediately submits to the labor inspector a request for adjustment accompanied by justifications, the opinion of the works council or, failing that, the staff representatives. , if there are any, the minutes of the consultation of union representatives, if any,and all necessary explanations of the causes which necessitated an extension of the daily working hours without prior authorization.
If he is awaiting a response to a request for exemption, he immediately informs the labor inspector of his obligation to anticipate the expected decision and gives the reasons for it.
The labor inspector submits a request for exemption, in application of this paragraph, makes his decision known, within fifteen days from the date of receipt of the request, to the employer and, if he appropriate, to staff representatives.
Section 2 Assignment to night shifts in the absence of agreement
The request for authorization to assign workers to night shifts presented to the labor inspector by the employer on the basis of article L. 3122-36 justifies, in a detailed manner:
1 ° The constraints specific to the nature of the activity or the functioning of the company which makes night work necessary in view of the requirements of continuity of the economic activity or of the services ofsocial utility;
2 ° The fair and serious nature of the prior initiation of negotiations within a maximum period of twelve months preceding the request;
3 ° The existence of counterparts and break times;
4 ° Taking into account the imperatives of protection of health and safety and of employees.
The opinion of union representatives and the works council or staff representatives is attached to the request. In the absence of a union representative, works council and staff representative, the request is accompanied by a document attesting to prior information to the employees.
The labor inspector makes his decision known within thirty days from the date of receipt of the request to the employer and to the staff representatives.
The hierarchical appeal against the decision of the labor inspector is brought before the regional director of labor, employment and vocational training, and is filed within one month following the date on which the interested parties received notification of the contested decision.
Sub-section 3 Medical surveillance of night workers
Night workers benefit from reinforced medical surveillance the purpose of which is to enable the occupational physician to assess the possible consequences of night work for their health and safety, in particular due to changes in chronobiological rhythms, and understand the potential repercussions on their social life.
Reinforced medical surveillance of night workers is carried out under the following conditions:
1 ° A worker may only be assigned to a night shift if he has been the subject of a prior examination by the occupational physician and if the aptitude sheet certifies that his state of health is compatible with such a assignment. This sheet indicates the date of the workstation study and the date of the last update of the company sheet when it is due. It is renewed every six months, after examination of the worker by the occupational physician;
2 ° The occupational physician is informed by the employer of any absence, due to illness, of night workers;
3 ° Apart from periodic inspections, the worker may benefit from a medical examination at his request. The occupational doctor prescribes, if he deems it useful, additional specialized examinations which are the responsibility of the employer;
4 ° Recommendations specifying the modalities of the examinations to be carried out with a view to ensuring the medical surveillance of night workers are the subject, as necessary, of a joint decree of the ministers responsible for labor and agriculture.
The occupational physician analyzes the consequences of night work, in particular the alternation of shifts and the frequency of the latter, when teams working alternately include a night shift.
To this end, he proceeds, during the periods during which night workers are employed, to the study of working conditions and the work station. It then analyzes the content of the position and its constraints for each worker.
On the basis of the information thus collected, it advises the employer on the best methods of organizing night work according to the type of activity of the workers.
The occupational physician informs night workers, in particular pregnant women and aging workers, of the potential health consequences of night work. This information takes into account the specificity of schedules, fixed or alternating. He advises them on any precautions to be taken.
For companies employing night workers, the annual activity report of the company doctor, provided for in article D. 4624-42, deals with night work as practiced in the company during the year in question.