The day package is commonly used by companies, among other things to avoid counting overtime. Emmanuel Labrousse, co-head of Walter France’s Social working group, draws the attention of employers to the strict respect required for its implementation. Otherwise, in case of dispute, overtime will be due.
Two articles of the Labor Code specify the conditions under which a day package is valid. The first (art. L3121-64 of the Labor Code) concerns the collective agreement. The latter determines the terms and conditions by which the employer ensures the evaluation and regular monitoring of the employee's workload. ; the terms by which the employer and the employee communicate periodically about the employee's workload, on the connection between his professional activity and his personal life, on his remuneration as well as on the organization of work in the company. The second article (art. L3121-65 of the Labor Code) foresees, on the other hand, additional provisions : in the absence of agreement respecting the first article, an individual package agreement in days can be validly concluded subject to compliance with the following three cumulative conditions :
The employer must establish a control document showing the number and date of days or half-days worked. Under the responsibility of the employer, this document can be completed by the employee.
The employer ensures that the employee's workload is compatible with compliance with daily and weekly rest times..
The employer organizes an interview with the employee once a year to discuss their workload, which must be reasonable, the organization of his work, the articulation between his professional activity and his personal life as well as his remuneration.
An employer convicted for non-compliance with conditions
In a recent case * an employee, licensed, had been hired under a flat rate agreement in days. In accordance with the first condition of the second article( L3121-65) the employer had put in place a control document showing the number and date of days and half-days worked, and the latter had been validated by the employee. However, the employee alleged that he had been prohibited from making any modification to the document. The day package agreement was canceled by the court of appeal, and the annulment was confirmed by the Court of Cassation, for the following reasons : the collective agreement, allowing the use of the fixed price in days, was not in conformity with the first article (L3121-64). The court therefore verified compliance with the requirements of the second article (L3121-65). It noted non-compliance with two conditions :
– Non-compliance with the second condition : the monitoring tables did not reflect the reality of the days worked by the employee ; it does not matter whether they were filled in by the latter since the tables must be established under the responsibility of the employer. So, the employer could not ensure that the workload was compatible with compliance with daily and weekly rest times.
– Non-compliance with the third condition : the employer had not organized the obligatory annual interview with the employee to discuss his workload.
Lessons to learn
This judgment serves as a reminder that, in the absence of sufficient conventional provisions, the employer can provide additional measures which must be respected. Failing that, the fixed rate in days is zero and the employee can claim payment for overtime worked beyond 35 hours per week. For Emmanuel Labrousse, “if the annual fixed rate in days may appear to certain employers as a means of circumventing the calculation of overtime, it nonetheless remains a risky tool in its implementation : eligibility conditions (system reserved for independent executives in the organization of their time) and monitoring must be applied particularly strictly to avoid any legal and financial risk..
* Court of Cassation, Social chamber, January 10, 2024, n° 22-15.782.
