What employment contracts groups Employers can they sign for the staff they make available to their members?
The Labour Code does not provide any detailed response since Article L. 1253-1 merely following definition:
"Groups of people within the scope of a single collective agreement may be made in order to make available to their members of staff associated with these groups by an employment contract. "
The administration has nonetheless clarified things in his circular of DRT No. 94 / 6 20 May 1994 relating to employers by quoting an exhaustive five separate cases:
"By defining the purpose of the activity groups, the legislature intended it to cover several situations in which the device can respond:
1 - to share qualified part-time employee (accounting framework with specific expertise);
2 - used successively, following periods of the year, one or more employees for seasonal work being at different times (eg size of fruit trees, harvesting vegetables, summer jobs, fruit harvest in the fall) ;
3 - occasionally receive extra labor to enhance the strength of existing employees, and thus allow to address the needs installments with a worker who has the status of permanent employee of the group;
4 - maintain the continuity of employment of an employee of several companies while the latter was threatened with dismissal or was likely to see its status become precarious
5 - transform precarious in permanent employment through the provision of membership services an experienced employee. "
The first case is distributed among several members an employee who implements his skills, part time, from each participant. The administration is thus the case of hiring a permanent contract (full-time, partial or intermittent) of an employee that each participant would have been able to recruit only full-time and will thus share their skills. Similarly, the third case (reinforcement of manpower installments) and the fifth case (precarious), also refer to this notion of a permanent contract by turning in precarious jobs to permanent employment.
The contract term indeterminate is very often put forward to define the purpose of the group. Yet the reality is quite different. The investigation of the MSA, posted on this blog, over the period 2000 to 2009 reveals that 80% of employment contracts signed in the 4000 agricultural employer groups are fixed-term contracts. The GEIQ, for their part, aim to organize pathways to integration and qualification for the benefit of job seekers facing difficulties employability. The CDI is not the goal, and most employment contracts are contracts for professional duration. Finally, many employers multisectoral groups routinely use the term contracts for extra work or to replace an absent employee of one of their members and regularly publish ads to that effect.
The use of seasonal contract is directly targeted by the administration and has so far never caused trouble. The group's objective is to offer employees more seasonal jobs to enable the employee to be busy all year. This relationship work can be done either by signing a series of seasonal contracts (which opens rights to unemployment insurance in some cases, between season) or as an employment contract intermittent alternating periods of seasonal work and time not worked (which no entitlement to unemployment benefit collection for time not worked) and finally to permanent contract full-time, often accompanied by a modulation of working time.
The seasonal employment contract may include a renewal clause for the following year. Similarly, the employment relationship, facing a series of seasonal jobs may be considered "globally indefinite" with the obligation for employer group to conduct a termination for terminating, as if the employee held a indefinite contract (Cass. soc., June 6, 1991, No. 87-45308: Bull. Civ. V, No. 288).
Unlike seasonal employment, the administration does not cover the case of jobs where it is customary to use the constant term contract, so-called "use" . This contract may be used by companies under one of the 20 sectors listed in Article D.1241-1 of the Labour Code in which activities are found groups of employers such as hotels, catering operations forest. Being an employer group Forest, the Labour Inspectorate has already made known its position without recourse to use contracts of short duration and by encouraging the group to focus on the employment contract of indefinite duration intermittent.
The case of fixed-term contracts for professional cons are possible and the administration has repeatedly emphasized in particular the statement DGEFP No. 2008-14 dated August 20, 2008. Nevertheless, on the ground, we see that access is not the same as it is entered by a GEIQ or by some form of employer group. Regarding the GEIQ, the above statement specifies that the contract may include a provision to a single participant during the term of that contract. By cons, Languedoc Roussillon, dirrect refused two groups of employers to contract professionalization "single-stick "On the grounds that it violates the principle of sharing between several members of the worker enrolled in the hollow in the Labour Code. The signing of
term contracts for extra work by employer groups undoubtedly poses a real legal problem and a fairly general hostility of labor inspectors. In legal terms, it does actually exists no legal basis to justify allowing the use of such contracts whose nature is contrary to the objective of fighting against poverty as the legislature has set itself by creating groups of employers. The use this contract is also excluded by the DRT circular No. 94 / 6 20 May 1994 relating to employers who provide the inverse precarious or casual is possible ... that in the context of a permanent contract. Then there is the problem of the contract. The addition will be specified in the contract of employment is one of the participant and not that of the group. This is the main criticism that was made in portage that was settled by joint agreement of June 24, 2010 Inter. The reason, moreover, by ricochet is also provided in the interim by national interprofessional agreement. This is not the case of employer groups who are undoubtedly significant risks by signing such contracts. Labour inspectors have spoken in this way many times on the subject and even, in extreme cases, notify their right to object to the operation of the employer group to stop this type of scam.
The same criticism regarding the contract of employment can be made for employment contracts to fixed-term "replacement of an absent employee" . This is not an employee of an employer group that is replaced but that of the participant.
It should be noted that in the matter, form specific groups of agricultural employers "alternative service" is an exception in providing not only the replacement (including fixed term contract) from the farmer or spouse but also his employees.
In conclusion, it must remain strictly within the standard and to ensure that each employer group will accomplish its purpose, that is to say, the fight against insecurity and / or participate in the insertion and qualification of people in difficulties.
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