Employment contracts counted in days

Certain employees can sign an annual flat rate agreement with their employer as long as a collective agreement authorizes them to do so. Such an agreement may only concern executives who have autonomy in organizing their schedule, or employees, whatever their status, whose working time cannot be predetermined.

Such a contract follows legal particularities which we’ll observe below.

I – The legal framework of the “Day package”

A – Definition

The system of the flat rate in days (necessarily over the year) makes it possible to remunerate certain employees on the basis of a number of days worked annually, without counting the working time. Thus, employees have great freedom to organize their schedule.

B – Employees concerned by this agreement

It can only concern two types of employees:

• • • Executives who have autonomy in the organization of their schedule and whose nature of their functions does not lead them to follow the collective schedule applicable in the department or company in which they work;
    • Employees, managers or not, whose working time cannot be predetermined and who have real autonomy in the organization of their schedule.

C – The need for a collective agreement

The flat rate agreement in days over the year presupposes the prior conclusion of a collective agreement providing for the possibility of using it. This may be a collective company or establishment agreement, or a branch agreement.

The agreement providing for the conclusion of individual day package agreements contains a certain number of mandatory clauses. In addition, additional provisions are provided for by the labour code. They plan in particular to compensate for the absence, in the collective agreement, of clauses relating to the monitoring of the employee’s workload.

D – The agreement must be provided for in the employment contract

An individual package agreement written and signed by the employer and the employee is necessary and it must specify the number of days per year without exceeding 218 days per year.

E – Days of rest

Employees on daily rate contract necessarily benefit from days of rest. Rest days are calculated based on the calendar year. To find out how many extra rest days to give the employee, from the total of 365 days in the year (or 366 in leap years), the following must be deducted:

• • • 218 days included in the package,
    • Days not worked (104 weekend days per year, i.e. Saturdays and Sundays),
    • Paid holidays (25 days)
    • Bank holidays that fall on a working day (10 for 2024)

II – Working time

A – The volume of days worked

The individual package agreement signed between the employer and the employee must respect the limit set by the collective agreement, which must not exceed 218 days per year. When an employee on a fixed-day package over the year benefits from days of seniority leave, the employer must deduct this seniority leave from the fixed number of days worked to set its ceiling on days worked.

A flat-rate agreement set for a number of working days lower than the maximum set by the collective agreement is considered full-time and not part-time. On the other hand, the URSSAF admits that employees holding an annual day package lasting less than 218 days see their social security ceiling prorated based on their working hours.

The employer must ensure compliance with daily rest (11 consecutive hours minimum), weekly rest (35 consecutive hours) as well as paid leave. It should be noted that the labour code does not provide for compliance with the legal maximum daily (10 hours in principle) and weekly (48 hours, or 44 hours over 12 consecutive weeks) working hours.

When the employee on an annual fixed-rate days is required to work on Sunday, he cannot claim payment for overtime (in fact he does not benefit from the legal working hours). However, he must benefit from his weekly rest.

B – Absence due to illness

When the employee is absent as part of sick leave, the employer cannot recover days not worked due to sick leave from rest days.

Collective agreements organizing the use of annual day packages must provide for the conditions for taking employee absences into account for their remuneration.

C – Calculation of working hours

The labour code article D 3171-10 stipulates: “The duration of work of employees in annual fixed rate in days must be deducted each year by recapitulating the number of days or half-days worked by each employee”.

The employer keeps this document available to the labour inspectorate for a minimum period of 3 years.

It is accepted, in this matter, that an employee can base his request on statements that he has established himself, namely a self-declaring document of the number of days worked.

III – Implementation of an annual package in days

A – Negotiating an agreement

• Collective agreement: First of all, a prior collective agreement authorizing the use of the days package over the year is essential. This may be a collective company or establishment agreement or, failing that, a branch convention. Company or establishment agreements take precedence over branch conventions and agreements.
  
  A collective company or establishment agreement can set up packages in hours and days over the year. Employers negotiate freely without being bound by any provisions of branch agreements in this area. The company or establishment agreement may be more or less beneficial than the branch agreement.
  
  However, when a sectoral framework agreement refers to company or establishment agreements for the establishment of flat rate agreements in days, the employer cannot conclude such agreements with employees in the absence prior company or establishment agreement. The subsequent conclusion of a company agreement does not regularize the situation.
  
  
• Individual agreement: The use of the annual flat rate in days with an employee requires his agreement and must therefore be the subject of an individual agreement established in writing. It is the signing of this clause which marks the employee’s agreement.
  
  The agreement must set the number of days worked, while respecting the limit set by the collective agreement, it is not possible to set a range for the number of days worked.
  
  
• Modification of the package agreement: The agreement is contractual in nature and its modification requires the prior agreement of the employer and the employee. In the event of agreement, a new agreement must be drawn up signed by each of them.

Note: In the absence of a written flat rate agreement signed by the employee or in the presence of an illicit agreement, the employee may ask the employer for back pay for overtime worked.

B – Content of the collective agreement for an annual package in days

The content of a collective agreement is imposed by law. However, the absence of some of the mandatory clauses can be compensated for. The agreement may also contain certain optional clauses.

Clauses common to all collective agreements:

• Scope: The labour code (art. L. 2222-1) stipulates: “Any collective agreement must specify its territorial and professional scope of application”. Thus, it is necessary to specify whether it applies to the company as a whole or only to certain of its establishments.

• Preamble: Any collective agreement must include a preamble succinctly presenting its objectives and content. The absence of a preamble does not, however, result in its nullity.

• Duration of application: It must indicate whether it is for an indefinite or determined duration. In the absence of details, the agreement is considered to be for a fixed term and applicable for 5 years.

• Form and deadline for renewal, revision and denunciation: The collective agreement must indicate how and when it can be revised.
  If the agreement is for an indefinite period, it is also necessary to indicate the conditions of its termination and in particular the duration of the notice period.
  If the agreement is for a fixed term, the terms of renewal must be specified.
  
  
• Monitoring conditions: Any collective agreement defines its monitoring conditions.
  However, the absence of this element is not likely to result in the nullity of the agreement.

Clauses specific to the annual package in days:

• The categories of employees likely to conclude an individual flat rate agreement;
• The reference period of the package, which may be the calendar year or any other period of 12 consecutive months;
• The number of hours or days included in the package (limit of 218 days for the package in days);
• The conditions for taking into account, for employee remuneration, absences as well as arrivals and departures during the period;
• The main characteristics of individual agreements, which must in particular set the number of hours or days included in the package;
• The methods of evaluation and regular monitoring by the employer of the employee’s workload;
• The terms of communication between the employer and the employee on the employee’s workload, on the relationship between his professional activity and his personal life, on his remuneration as well as on the organization of work in the company;
• The terms and conditions under which the employee can exercise his right to disconnect.

Notes: The agreement may also include a large number of optional clauses.

When the collective agreement does not include mentions relating to workload and the right to disconnect, the employer can conclude individual agreements for annual packages in days, but he must respect a specific procedure which will demonstrate that his control on these points has actually been carried out.

C – Remuneration

The remuneration of the salary in an annual flat rate agreement in days must be in relation to the constraints linked to work. It is impossible to exclude this right by a clause in the collective agreement or employment contract.

If the employee receives remuneration clearly unrelated to the constraints imposed on him, he can request compensation in court. This compensation must be based on the damage suffered, taking into account in particular the salary level practiced in the company for the qualification level of the employee concerned.

D – Payslip

The payslip must indicate the nature and volume of the package to which the salary corresponds, for example “207 days annual package”.

In the event of redemption of rest days on the basis of an amendment to the employment contract, the additional working days appear separately on the payslip with their specific valuation.

If necessary, the employee must receive all the additional documents relating to the compulsory compensation for rest provided for by the collective agreement or by the labour code.

In principle, the employee receives an annual summary detailing the number of days or half-days worked over the year.

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