The Collective Performance Agreement (APC): a new crisis management tool

Until 2017, companies could implement job retention agreements, subject to justification of economic difficulties. The Macron ordinances of 09/22/2017 ratified and facilitated this practice by creating the collective performance agreement (APC).

Henceforth, the employer is no longer required to justify any economic difficulties or to make commitments regarding employment within the company.

Les accords de performance collective, dès l’origine, ont été pensés comme un instrument permettant  » aux entreprises d’anticiper et de s’adapter rapidement aux évolutions à la hausse ou à la baisse du marché par des accords majoritaires simplifiés sur le temps de travail, la rémunération ou la mobilité. « (1)

These agreements now allow employers to adapt to their economic environment by modifying the contractual working environment of their employees.

A l’instar de nos homologues américains ou canadiens, la volonté collective passe dès lors devant les volontés individuelles. Le législateur a en effet souhaité donner une primauté – même défavorable aux salariés – à l’accord collectif dès lors qu’il peut permettre de sauvegarder la compétitivité de l’entreprise.

The three points on which the collective performance agreement can rely are, in short, the four pillars of the contractual foundation, namely working time, remuneration, qualification, and mobility.

Above all – and this is the major advantage of these agreements – working time, mobility, or even the payroll become, through these agreements, adjustment variables managed by the employer, bypassing the individual consent of their employees.

After two years of crisis linked to the Covid-19 pandemic, which weakened many sectors of activity, the Collective Performance Agreement is a particularly suitable tool to enable companies to adapt their operations to the economic situation.

How to implement this type of agreement?

The collective performance agreement can be concluded at any level within the company, whether at the establishment or group level.

Even better, since no workforce condition is provided for, nothing prevents the conclusion of CPAs in very small businesses, i.e., companies with fewer than 11 employees, but also those with 11 to 20 employees without employee representative bodies.

When concluded with union delegates, the agreement to be valid must be signed on the one hand, by the employer or their representative, and on the other hand, by one or more representative employee unions that have obtained more than 50% of the votes cast in the first round of the last CSE elections.

In the absence of a union delegate, the employer may either negotiate with elected employee representatives or directly propose a draft collective agreement to employees, which must be ratified by a majority of the votes cast.

How to implement the APC?

First, the employer must inform employees of the existence and content of the agreement, as well as the right of each employee to accept or refuse the application of this agreement to their employment contract(2).

Either the employee accepts and the stipulations of the agreement automatically replace the contrary clauses of their employment contract. Thus, the agreement may simply modify remuneration (subject to compliance with hierarchical minimums), working hours, and professional or internal geographical mobility within the company.

Either the employee refuses the application of the agreement, within one month, and faces a specific dismissal, the real and serious cause of which is pre-established. Indeed, the dismissal will be neither economic nor personal; it will be the consequence of the mere refusal to apply the agreement.

To do this, the employer only needs to comply with the provisions of the Labor Code relating to termination of the contract: notice period, compensatory allowance in lieu of notice, and severance pay.

The practice of such agreements within the company should in principle foster a virtuous circle, promoting forward-looking employment management that adjusts the company's payroll to its cyclical economic environment rather than abruptly reducing it through economic redundancies.

1) (Report of the President of the Republic relating to Order No. 2017-1385 of September 22, 2017).

2) (art. L 2254-2 of the Labor Code)

 

Business law