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Organization of Labor Relations for Digital Platforms

New Order or Decree

Author: Guillaume Desmoulin, Partner – Fromont Briens | Littler

An order dated April 6, 2022, sets a new framework for labor relations within digital platforms dedicated to the transportation of persons and the delivery of goods by means of a two- or three-wheeled vehicle, motorized or not. Each branch of business determines which association can represent the platforms. The lists of workers’ unions have already been published in two orders of June 24, 2022. These organizations (employers’ associations and employees’ unions) will be able to negotiate and conclude sector-wide collective agreements for a fixed or indefinite period.

These agreements may cover all working conditions, remuneration and performance of professional activity, vocational training, and social guarantees for workers, as well as the start and the termination of commercial relations with the platforms. The text sets out a timetable with mandatory and optional negotiation topics. These agreements are binding for all signatories and their members. It can also be made mandatory for all the platforms and their workers included in its scope, by approval decision taken by the ARPE (Authority of Social Relations of Employment Platforms).

The “Macron Scale” of Indemnification for Unfair Dismissal is Not Contrary to Article 10 of ILO Convention 158

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Fromont Briens | Littler

The “Macron Scale” sets minimum and maximum amounts of indemnification in case of unfair dismissal. The amounts vary depending on the employee's seniority. Employment tribunals are bound by this scale, for all the dismissals notified after September 24, 2017. Fairly quickly, some employment tribunals and courts of appeal rejected the application of this scale, deeming it contrary to Article 10 of Convention 158 of the International Labor Organization and Article 24 of the European Social Charter, which provide for the right to "adequate compensation" or any other “appropriate remedy.”

Reiterating the position taken in July 2019, the French Civil Supreme Court has reaffirmed that the scale of indemnification for employees dismissed without cause is not contrary to Article 10 of Convention No. 158 of the ILO. It therefore considers that the French judge cannot set aside, even on a case-by-case basis, the application of the scale with regard to this international convention. It also specified that French law cannot be reviewed for compliance with Article 24 of the European Social Charter, which does not have direct effect.

An Intra-group Transfer Does Not Entail Transfer of Liability

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Fromont Briens | Littler

When the change of employer results from the application of Article L 1224-1 of the French Labor Code, the new employer is bound by the obligations of the former employer. The transferred employee may claim a compensation from the new employer for any damage caused by the former employer due to a breach of its obligations prior to the transfer of the contract. However, this transfer of liabilities does not apply to conventional transfers, especially in cases where the staff is transferred following a loss of a contract.

In such case, the French civil Supreme Court had to rule on a tripartite agreement under which an employee left the position he held in one company in order to join another company belonging to the same group. The purpose of the agreement was to continue the employment contract within another company of the group, with the same seniority, the same qualification, and the same salary. The Court ruled that, in lack of express provision to this effect or voluntary application of French TUPE rules, such agreement does not entail the transfer to the new employer of all the obligations of the former employer. The employee is therefore not entitled to make any claim against the new employer based on breaches attributable to the first employer.

The “Clicwalkers” Do Not Perform a Work Under a Subordinate Relationship

Precedential Decision by Judiciary or Regulatory Agency

Author: Guillaume Desmoulin, Partner – Fromont Briens | Littler

In a decision dated May 5, 2022, the Criminal Division of the French Supreme Court ruled on the status of “clicwalkers.” These individuals collect commercial data in the field, using a free “Click and Walk” application, and receive a gratuity in gift points or cash paid after verification of compliance with the terms of the proposed mission. The criminal chamber has dismissed the existence of a relationship of subordination since (i) the individual is free to abandon the proposed missions during the performance of the service, (ii) the individual does not receive any instruction during this performance, (iii) the company does not have the power to control the correct enforcement of the mission and to sanction the potential breaches, even if the correct performance of the missions is checked by the company which can refuse to pay the envisaged compensation and the reimbursement of the expenses incurred, in case of noncompliant performance. In the absence of subordination, the offense of concealed work is dismissed.