Concerted organisation of working time: Law No. 1.505 of 24 June 2021
Law No. 1.505 of 24 June 2021 on the concerted organisation of working time (JDM No. 8545 of 2 July 2021) is a result of the Bill No. 1025 on the concerted organisation of working time, received by the National Council on October 23, 2020, and voted during the Public Session of June 17, 2021.
Originally, the concerted organisation of working hours was only to be in the context of exceptional circumstances related to the COVID -19 epidemic situation, for a temporary period of one year.
The legal framework integrates the concerted organisation of working time in a permanent way in the Monegasque law. It is open to:
- Industrial, commercial, artisanal or agricultural establishments
- Ministerial offices
- Liberal professions
- Private hospital establishments
- Civil companies
- Professional unions
- Associations without distinction of form or purpose.
Working hours may be distributed by a collective labor agreement or, failing that, by a company agreement over a reference period longer than a week, which may not exceed one year. In this case, the working time of 39 hours constitutes the average weekly working time over this reference period.
The organisation of working hours implemented by the employer pursuant to a collective labor agreement or a company agreement applies in principle to employees who signed their employment contract before the law came into force, without the need to conclude an amendment to the employment contract. However, for employees who signed an employment contract with a weekly working time of less than 39 hours before the law came into force, the arrangement of their working time is subject to their written agreement.
As soon as the scheme becomes a permanent part of Monegasque social law, the provisions relating to the concerted arrangement of working hours are directly integrated into the existing texts.
♦ CONDITIONS OF IMPLEMENTATION OF THE ARRANGEMENT OF WORKING TIME
Amended text: Ordinance-Law No. 677 of December 2, 1959, on working hours, as amended (new para. 2 of art. 1, new Articles 8-1 to 8-7).
-> Definitions :
– Mechanism of the organization of working time.
– Maximum duration of the reference period: 1 year.
-> Negotiation instruments:
– Subsidiarity criterion: the company agreement can only be used in the absence of a collective labor agreement authorising and governing the organisation of working time. A collective labor agreement under negotiation does not prevent the conclusion of a company agreement, which would be terminated by the mere fact of the entry into force of the collective agreement on the organisation of working time.
– Voting on the collective labor agreement or the company agreement on the organisation of working time: simple majority of the employees, and guaranteeing anonymity (modalities fixed by Sovereign Order). The regularity of the voting operations can be appealed to the Justice of the Peace ruling urgently and as a last resort, and the decision of the Justice of the Peace can be referred to the Court of Revision ruling on documents and urgently.
– Mandatory provisions of the collective labour agreement or the company agreement on the organisation of working time :
- Categories of employees to whom the organisation of working time applies ;
- Date on which the reference period takes effect ;
- Number of working hours included in this reference period, which includes the hours of the days usually worked, excluding in particular public holidays and non-working days;
- Maximum and minimum weekly working hours in the company during the reference period;
- Consideration granted to employees concerned by the reorganization of working hours;Duration of validity of the collective labor agreement or the company agreement;
- Conditions and periods of notice in the event of a change in the duration or schedule of work;
- Conditions and notice period for the denunciation of the collective labor agreement or the company agreement;
- If applicable, the result of the vote of the employees concerned by the organisation of the working time.
-> Determination and payment of overtime :
– Definition: hours worked beyond an average weekly working time of 39 hours or beyond the working time considered as equivalent.
– Calculation and remuneration: comparison of the hours actually worked by the employee over the reference period, and the number of hours he should normally have worked over the same period, on the basis of 39 hours of work or the duration considered as equivalent. The excess hours are considered as overtime and will be paid as such.
– In the event of arrival or departure during the reference period, or termination of the collective labor agreement or the company agreement during this period: same rules of remuneration apply.
– For employees working less than 39 hours a week: hours worked in excess of the weekly working hours stipulated in the contract and which do not exceed 39 hours a week, or the duration considered equivalent, do not constitute overtime. These additional hours worked will be deducted and paid at the end of the reference period. If the employee leaves during the reference period, or if the collective bargaining agreement or the company agreement is terminated during this period, these additional working hours will be deducted and paid at the time of the termination of the contract, or of the agreement.
– In the event of paid absence: the time not worked will not be recoverable and will be counted on the basis of the time that would have been worked if the employee had been present, including the hours over 39 hours per week or the duration considered as equivalent.
– Minimum notice period for employees for any change in the distribution of their working hours in companies that have set up a working time arrangement over a reference period longer than a week: 14 calendar days.
– The average weekly working time may not be increased beyond the maximum legal working hours provided for in principle by Article 5 of Ordinance-Law No. 677 .
For minors and apprentices: paragraph 1 of Article 13 bis of Ordinance-Law No. 677.
For employees with a contract of employment of less than 39 hours per week: pro rata temporis of the maximum working hours applicable to employees employed for a 39-hour week.
For employees whose actual working hours are determined by the application of an equivalence system, on the basis of the actual working hours provided for by Ministerial Order No. 60-004 of January 6, 1960, as amended, setting the equivalence system for working hours.
– The implementation of a working time arrangement over a reference period longer than a week may not affect the legal or conventional provisions relating to rest time.
– At least one of the following compensations must be granted to employees whose working hours are arranged over a reference period longer than one week :
- financial compensation: remuneration of at least 10% of the hours worked in excess of 39 hours per week, or the duration considered equivalent, or the duration fixed in the contract, without prejudice, where applicable, to the payment of overtime;
- compensation in the form of recuperation time: credited to a time-saving account and corresponding to at least 10% of the hours worked in excess of 39 hours per week, or the duration considered equivalent, or the duration fixed in the contract. It must be balanced at the end of the reference period or, where applicable, on the day of the termination of the employment contract or the termination of the collective labor agreement or the company agreement. On this date, the time in this savings account will constitute overtime.
♦ GENERAL PROVISIONS RELATING TO THE NEGOTIATION, CONCLUSION AND TERMINATION OF THE COMPANY AGREEMENT
Amended text: Law No. 459 of July 19, 1947 modifying the status of staff delegates, amended (paragraph 1 of Art. 2 amended, new Art. 2-1 to 2-9)
– New mission of the staff delegates: to represent, negotiate with the employer and conclude for the employees of the company, a company agreement provided that their mandate has not expired on the day of the signature of the said agreement.
– Definition of a company agreement: an agreement signed between an employer or his representative on the one hand, and the staff delegates or, failing that, an employee representative specially appointed for this purpose, on the other. The staff delegate and the employee representative may be assisted by any trade union delegate. The assistance of a trade union delegate aims at supporting the staff delegate or employee representative by providing him/her with full information on the negotiation rules.
– The lack of a staff delegate is characterized by either :
- the failure to appoint one or more staff delegates following the organisation of the election provided for by Sovereign Order No. 3.285 of September 15, 1946, as amended, fixing the terms and conditions of the electoral operations in application of law No. 320 of June 13, 1945;
- the early termination of the delegate’s mandate ;
- the fact that the company has less than 11 employees.
– Election of the employees’ representative when it is envisaged to conclude a company agreement on the organization of working time, who must himself be concerned by this organization: by a simple majority of the employees of the company concerned by the organisation of working time, by secret ballot, for the sole duration of the negotiation of the company agreement.
– The conditions of eligibility, the time required to carry out the mission and the prohibition of dismissal are also governed. Disputes relating to the right to vote and to the regularity of the electoral operations are within the competence of the Justice of the Peace, ruling urgently and as a last resort, and the decision of the Justice of the Peace may be referred to the Court of Revision, ruling on documents and urgently.
– The procedures for opening negotiations, concluding the agreement (for a fixed or indefinite period), bringing it into force, amending it and terminating it are then set out.
– The compliance of the company agreement is checked by the Labour Department. The organisation of working time may be implemented by the employer when the Director of Labor explicitly declares the agreement compliant with the above-mentioned provisions. Failure to respond to the Director of Labor will result in the rejection of the agreement. A company agreement concluded or implemented in disregard of the legally established conditions is null and void.
– As for the labor inspectorate, it is responsible for ensuring that the provisions of the company agreement are properly implemented.
♦ PRINCIPLE OF INDEPENDENCE OF THE AMOUNT OF MONTHLY REMUNERATION TO THE WORKING TIME ACTUALLY PERFORMED
Amended text: Law No. 739 of March 16, 1963 on wages, as amended (new 2nd paragraph of Art. 1).
The monthly remuneration of the employees concerned by the organisation of the working time is independent of the actual working time performed, or of the working time considered as equivalent to actual working time by the Ministerial Order No. 60-004 of January 6, 1960, as amended, fixing the system of equivalence in terms of working time.
It is also specified that the employee is paid, for the whole of the reference period, on the basis of 39 hours of work per week, or the duration considered as equivalent, or the duration fixed in the contract