The specificities of the building and public works sector in regard to social law

The construction and public works (also known in France as BTP) sector is very much present in social law. Indeed, the BTP collective agreement is one of the five most represented collective agreements in France, covering 34% of small businesses and brings together the most of employees.

Social law, within this industry, has many particularities, the main ones of which we will summarize in the following four chapters:

• Collective agreement
• Employment contract
• Specific social organizations
• Salaries and payroll management

I – The collective agreement: its specificities

1. 1. Definition of the concerned activities

Before considering various specific points, it remains important to explain first, the activities within the construction industry, second, the activities connected to the public works.

Building companies include companies that build, develop, restore, or remove all types of buildings, i.e., premises, houses, hospitals, etc.

In addition, to understand the classifications of employees, it is necessary to know that there are two types of work: the primary work and the second work.

The primary work includes all these construction activities (walls, floors, roofs). The second work includes all the other work carried out when the main work is finished.

Public works concern the construction of structures such as highways, bridges, tunnels, dams. Public works companies include building structures and civil engineering firms.

1. 2. Three employees’ classifications

Workers: People doing the handy job on sites (construction contractor, tile-layer,…).

ETAMs (Employee, Technician and Supervisor): In between workers and executives, they represent the admin staff such as accountants, secretary, geometrician, etc.

Managers: In construction, they are not necessarily in charge of directing and giving orders to other employees. The collective agreement for public works classifies an employee as executive:

• If they perform an expert function which requires technical knowledge and/or experience
• If their predominates functions are managing, animating, and coordinating the work in compliance with safety rules.

1. 3. The list of specificities of the collective agreement

These are the following:

• Travel allowances
• Meal or basket allowances
• Night work
• Overtime
• Holiday bonuses
• Poor weather conditions and paid vacation fund

We will go through most of them in the following chapters.

II – Employment contract

1. 1. Hiring

The BTP professional identification card: This card allows to regulate and control illegal works and unfair social competition. It targets employees carrying out construction or public works, including temporary workers and seconded employees.

It allows to specifically identify employees as well as the verification of the mission for temporary workers and posted workers.

This card is mandatory, and the request must be made online by the employer on the following website: https://gestion.cartebtp.fr

The card is valid for the entire duration of the contract (5 years for temporary workers or for the secondment period for seconded employees); however, must be returned to the employer at the end of the employment contract.

In the event of a change of employer, a new card must be requested.

Hiring foreign workers: Before employing foreign workers on national territory, companies are required to check whether the employee has a work permit (if not, request one).

When a work permit is required, the employer must request it from the Prefecture services.

Each work permit must be renewed for any new contract.

To obtain work authorization, the job offer must meet the following criteria:

• Either appear on the list of shortage occupations (some building trades are subject to it)
• Or be the subject of an offer published for 3 weeks by the public employment service without being filled by any candidates who meet the characteristics of the job.

1. 2. Occupational risk assessment document

The unique risk assessment document (known as DUERP) is overly important within BTP companies. It is used to identify risks in order to prioritize preventive measures. This document must be filed in via a digital form through a dedicated portal.

The DUERP must be kept for at least 40 years and made available to workers and former workers as well as to any person who can demonstrate an interest in having access to it.

The company must send the DUERP each time it is updated to its occupational health and prevention department.

3. The various types of employment contract

The permanent contract (CDI): The CDI is one of the employment contracts available for a worker or for a construction manager. With a few variations, the CDI in the building industry looks exactly like any other permanent contract.

The construction site permanent contract: This is an open-ended contract (CDI) entered for the duration of a construction or an operation. It has the specificity of being able to be lawfully terminated by the employer when the site for which the employee was recruited is completed or the operation carried out.

The breach of the construction or operation contract which occurs at the end of the construction site or once the operation has been carried out is based on a real and serious cause if this is provided for by the collective agreement.

Fixed-term contract (CDD) for temporary increase in activity: This contract is only possible if, compared to the normal and permanent activity of the company, the conclusion of a new project corresponds to an unusual increase in the activity of the company that it could not cope with its permanent workforce.

Therefore, a fixed-term contract cannot be concluded to carry out work related to the preparation and start-up phases of a new site.

A waiting period of 20% of the whole duration of the contract (within the limit of 10 calendar days) must be observed between two successive fixed-term contracts. However, no waiting period is required between two successive fixed-term contracts concluded for a temporary increase in activity when the duration of the first is greater than one month.

Four contract renewals are possible.

1. 4. Work duration

Overtime: The overtime pay increase is:

• 25% from the 36^th to the 43^rd weekly hour
• 50% from the 44^th hour

The annual overtime quota is 180 hours.

Mandatory counterparty in rest within the BTP:

• For workers and ETAM, the rate of mandatory rest compensation is 100% of overtime hours worked, regardless of the size of the company.
• For executives, there are no contractual provisions. Consequently, the legal provisions are applicable (rate is 50% in companies with 20 employees or less and 100% beyond).
  However, a 100% counterpart is provided for all building executives by an extended national agreement of February 25^th, 1982, but this does not appear in the non-extended CCN for executives of June 1^st, 2004.

Night work: Night work must be exceptional. In general, it corresponds to hours worked between 9 p.m. at the earliest and 7 a.m. at the latest. This period must be 9 hours in a row with the interval “midnight 5 hours” included.

An increase must be added to the salary in the event of night work. In BTP sector, this increase is 100% for an exceptional night worker.

This increase does not apply for scheduled night work. This concerns scheduled work allowing “to ensure the continuity of the company’s activities” or to “meet the requirements of carrying out contracts” and whose duration exceeds three days. For these interventions, the night hours are increased as follows:

• For companies with more than 10 employees, the 25% increase concerns hours worked between 9 p.m. and 6 a.m.
• For companies with up to 10 employees, it is applicable for hours worked between 8 p.m. and 6 a.m.

III – Specific social organizations to BTP sector

1. 1. PRO BTP pension and provident fund

Employees must be affiliated within 15 days of hiring, with the regional management of the provident and supplementary pension organization (online declaration www.probtp.com).

This formality is also carried out for all staff movements (hiring, departure, change of professional categories, etc.)

Pension: The overall contribution rates (employer share + employee share) are identical for all categories of staff (workers, ETAM and executives):

• 7.87% on bracket 1
• 21.59% on bracket 2

Employees are entitled to a retirement bonus which is calculated as follows: The index, reviewed each July, has been set at €6.05 since July 1^st, 2022. For workers affiliated to Pro BTP for at least 30 years with a period of activity after 50 years: 1,400 times the index, therefore €8,470.

Provident: The basic plan covers:

• Benefits from the 91^st day of interrupted work
• A pension in the event of incapacity or invalidity
• A death benefit for the beneficiaries
• An annuity depending on the sector and the family situation
• Participation in certain surgical hospitalization costs, according to their sectors
• A fixed contribution is paid to new parents.

The optional guarantees are as followed:

• Spouse’s pension for ETAMs and executives: payment of a pension to the surviving spouse or children
• Additional capital in the event of the death of a spouse or dependent child, an accident, or an occupational disease
• Surgical hospitalization costs for non-executives.

1. 2. The paid leave fund

Membership is mandatory for any companies whose main activity falls within the scope of national collective agreements of BTP.

The construction and public works paid leave funds ensure the payment of paid leave allowances to employees of companies’ members as well as the payment of related social security contributions: employer and employee social security contributions, solidarity autonomy contribution, etc.

1. 3. Poor weather condition leave fund

Employers working in the construction industry are required to affiliate their company to a “Congés “Intempéries” BTP” fund (Poor weather conditions leave). An employee compensation scheme exists in the event of interrupted work caused by bad weather (floods, snow, storms, etc.) making all kind of work dangerous.

To benefit from it, the employee must fulfill the following criteria:

• 200 hours worked during the last 2 months
• Present on the site when the activity stops unless he has a justified absence.

The employer can ask the employee to carry out replacement work in order to avoid having to use this fund.

IV – Salaries and payroll management

1. 1. The specific flat-rate deduction (D.F.S.)

BTP employers are authorized to apply a 10% reduction on the basis of social security contributions, called “specific lump-sum deduction” (DFS) in order to compensate for the professional expenses of employees on site.

The employer can opt for the specific flat-rate deduction for professional expenses when a convention or a collective labor agreement has explicitly provided for it or when the works council, the staff delegates or the social and economic committee have given their agreement.

Failing this, it is up to each employee to accept this option annually or not.

However, when the employer applies the DSF, the basis for calculating the contributions may not, after application of the deduction, be less than the amount of the legal minimum wage (SMIC) increased by the allowances, premiums or normal increases which are added to it by virtue of a legislative or regulatory provision.

In addition, when the company applies the DFS, the basis for calculating the contributions consists of the total amount of remuneration, allowances, bonuses, gratuities, and when applicable, allowances paid for reimbursement of professional expenses and benefits in kind.

However, the long-distance travel allowances are not reintegrated into the basis for calculating contribution.

Moreover, it should be noted that two changes have recently been adopted regarding the DFS:

• It must now be demonstrated that the employee actually incurred professional expenses in order to be able to apply the DFS
• The consent of the employee must be requested every year.

From January 1^st, 2024, the specific flat-rate deduction of 10% will be reduced by 1 point each year and by 1.5% for the last two years until it disappears as from January 1^st, 2032.

1. 2. Short-trips allowances

Meals for site workers in BTP: Construction workers working on construction sites can benefit from a flat-rate meal basket allowance when they are unable to return to the company’s headquarters or their home.

The amount of this compensation is fixed by agreement and varies according to each region.

This allowance is exempt from social contributions within the limit of €9.90 per meal in 2023 (unless the DFS applies).

Travel allowances: The worker’s building agreement provides for compensation for the worker’s travel time as well as the distances traveled.

The purpose of this travel allowance is to compensate, in a lump-sum form, the constraint represented for the worker by the need to go to the site daily and to return from it.

Its amount is fixed according to concentric zones (“as the crow flies”) from 0 to 10 kms, from 10 to 20 kms, from 20 to 30 kms etc.

Transport allowances: Its purpose is to provide lump-sum compensation for transport costs incurred daily by the worker to get to the site, regardless of the means of transport used.

However, this is not due when the worker does not incur transport costs:

• If the employer provides free transport for the employee or reimburses his transport ticket
• If the worker uses a vehicle made available to him by the company.

The amount of this flat-rate allowance is fixed by agreement and varies according to each region, based on the same zones as those applicable to travel allowances.

1. 3. Long-trips allowances

A long trip can be defined when an employee will be prevented from returning home at the end of the day. In order to compensate the costs caused by the mobility of the workplace, the employer must cover the additional expenses of food and accommodation, either on the basis of the costs actually incurred on proof of payment, or on the basis of a lump sum indemnity. The reimbursement of professional expenses cannot be subject to social security contributions.

1. 4. Apprentices’ wages

It should be noted that there are specific pay rates for apprentices in BTP sector.

These rates are set as a percentage of the legal minimum wage (SMIC), depending on the year of apprenticeship and the age of the apprentice.

Here is an overview of the rates based on the previously mentioned criteria: