Introduction to French labor law

Zheng Aiqing, a researcher at the Law School of Renmin University of China and a doctor of social law at the University of Paris I, France, wrote an article introducing the relevant laws and regulations on the conclusion and dissolution of labor contracts in France. The relevant information is as follows:

France is a country with relatively complete labor contract legislation among civil law countries, and its labor contract legislation has gone through a historical process from weak norms and less protection of workers' interests to strengthening the norms of labor relations and paying attention to the protection of workers' rights and interests. Many aspects of its legal system can provide reference for the perfection of China's labor contract legislation.

I conclusion of labor contract

(a) the term of the labor contract

The term of labor contract is an important and basic content in French labor law, because labor contracts are divided into two basic categories: non-fixed-term labor contracts and fixed-term labor contracts, and the labor laws and regulations regulating the rights and obligations of employers and employees are also different.

Article 12 1-5 of the French Labor Law clearly puts forward the general principle about the term of labor contracts-the term of labor contracts is generally open-ended, that is, employers and workers should generally conclude open-ended labor contracts; Fixed-term labor contracts are exceptions, and can only be concluded under the circumstances clearly stipulated by law. Labor laws and regulations shall apply to open-ended labor contracts, unless otherwise stipulated.

Article 122- 1- 1 of the Labor Law stipulates that a fixed-term labor contract can only be applied in the following circumstances: First, to replace employees whose labor contracts are suspended such as sick leave and maternity leave; Second, when the business activities of enterprises change, it is suitable for seasonal or temporary job creation; Third, conclude some special labor contracts to solve the unemployment problem of some people, such as employment mutual assistance, adaptability and qualification labor contracts for young people and long-term unemployed people. At the same time, article 122-3 clearly lists two situations in which it is forbidden to sign a fixed-term labor contract: first, when recruiting employees to replace employees whose performance of labor contracts has been suspended due to collective labor conflicts (such as strikes); Second, in the particularly dangerous work listed in the ministerial regulations.

There are still many restrictions on the application of fixed-term labor contracts by law. For example, Article 122- 1-2 requires that the term of a fixed-term labor contract should be clearly stipulated. In addition, this article clearly stipulates the term and renewal of fixed-term labor contracts. A fixed-term labor contract can only be renewed once, and the renewal period plus the original contract period generally does not exceed 18 months. According to the law, an employer may not conclude a fixed-term labor contract with a worker in the same position continuously. If it is necessary to renew a fixed-term labor contract, it must wait for one third of the previous contract period to be concluded (except for replacing some employees); If the labor relationship continues to exist after the expiration of the fixed-term labor contract, it will be converted into a non-fixed-term labor contract relationship; The situation that the employer has concluded fixed-term labor contracts with workers in multiple positions continuously is also regarded as a non-fixed-term labor contract relationship; Fixed-term labor contracts concluded for seasonal work can be renewed according to the terms of the contract, but in any case, they are fixed-term labor contracts.

(2) The probation period of the labor contract

According to the French labor law, the probation clause of a labor contract can be agreed by the parties when the contract is concluded, or when the employee's post changes during the performance of the contract, such as when the apprenticeship contract is converted into a fixed-term contract. The probation period agreed upon when concluding a labor contract is usually determined according to industry practices or collective contracts; But even if the collective contract does not involve the probation period, the individual labor contract can also stipulate the probation period clause. If the law does not stipulate the probation period of a labor contract with no fixed term, the parties shall perform the provisions or agreements in the collective contract, but the agreed probation period shall not exceed the period stipulated in the collective contract. If the probation period of a fixed-term labor contract is not stipulated in the collective contract, it shall be implemented in accordance with the provisions of the Labor Law. Article 122-3-2 of the Code stipulates that if the contract term is 6 months, the probation period shall not exceed 2 weeks at the longest according to the method that the probation period is one day per week; If the contract term exceeds 6 months, the probation period is 1 month. If the term stipulated in the collective contract is shorter than that stipulated by law, the probation period stipulated in the collective contract shall be implemented in accordance with the principle of preferential treatment.

Second, the termination of the labor contract

Because the most important form of labor contract in France is non-fixed-term labor contract, it is necessary to make reasonable regulations on the dissolution of these contracts to ensure that the rights and interests of both parties to the contract will not be abused or ignored, so that both parties can enjoy the freedom and restraint they deserve. Therefore, the perfection of the labor contract rescission standard is a necessary condition for the effective application of open-ended labor contracts. This is also an aspect that must be paid attention to in China's labor contract legislation.

The French labor law before 1973 was based on the idea of employers' free operation and management, which believed that the termination of labor contracts was the privilege of employers, while the opposite employees had no right to unilaterally terminate the contract relationship. Such norms often make employers abuse their rights and employees have no job security. With the efforts of trade union organizations and academic circles, Law 1973 has carried out a series of reforms on the termination of labor contracts, established the principle that both parties have the right to unilaterally terminate the contract relationship, put forward the substantive elements and procedural elements for the termination of the contract, and established the principle of inversion of evidence in favor of employees. This law is a milestone in the labor contract law. Since then, the laws of1August 4, 982,1July 3, 986,1February 30, 986, and1August 2, 989 have made supplementary provisions on the specific circumstances of dissolving the labor contract.

French labor law divides the dissolution of labor contracts into two categories: dissolution for personal reasons and dissolution for economic reasons. The former refers to the termination of the labor contract due to factors closely related to individual employees and behaviors that can be investigated for fault, while the latter refers to the termination of the labor contract due to changes in enterprise operation and economic conditions and factors unrelated to individual employees. This classification facilitates different legal adjustments for different reasons and situations.

(1) The labor contract is terminated for personal reasons.

1. Legal reasons for dissolution

1973 July 13 The law stipulates that any legal dissolution of the labor contract must have "practical and serious reasons", regardless of the size of the enterprise. This provision breaks the previous situation that dismissal is entirely discretionary by the employer, and the dismissal behavior of the user's unit is subject to more specific legal constraints: from a right of "no need to explain the reasons" to a right of "having to explain the reasons", whether this "reason" belongs to the "actual significant reason" stipulated by law is judged by the judge.

What is a "practical and serious reason"? The law does not give a definition, but its specific meaning and requirements are obtained through a series of judicial decisions.

The case law of the Social Chamber of the French Supreme Court holds that "practical reasons" require that the reasons for dismissal put forward by employers must be "objective, not subjective speculation or preconceived ideas, and must not be related to employers' emotions", followed by "concrete and realistic reasons" and finally "exact, not an excuse to cover up real motives". For example, in one case, the dismissal proposed by the employer was real.

As for "serious reasons", case law requires that, first of all, the fault of employees must be "the reason why the existence of labor relations may bring lasting damage to enterprises" Before the law of 1973 July 13, the slight negligence of employees may lead to the dismissal of employers. Since the implementation of the law, minor faults no longer constitute "serious reasons" required for statutory dismissal. Secondly, the fault must also be "occupation-related", which usually refers to the fault related to the job, working hours and their work; However, if an employee's fault outside the workplace is enough to cause chaos in his enterprise, it should also be regarded as a "serious reason" for dismissal. According to judicial precedent, this kind of "serious fault" is the "lowest line" for the employer to legally dismiss, and the employer should abide by the statutory notice period of dismissal and pay the employee the dismissal compensation. It is different from "slight fault", that is, a slight fault that does not have the characteristics that make labor relations impossible to continue does not constitute a legitimate reason for dismissal; It is also different from "serious fault" leading to the immediate dissolution of the contract relationship, deprivation of notice period of dismissal and dismissal compensation; It is also different from "gross fault" leading to immediate termination of the contract relationship, deprivation of notice period of dismissal, dismissal compensation and paid annual leave compensation. The Supreme Court defines "serious fault" as "one or more facts that employees seriously violate their obligations under the labor contract, which makes it impossible to maintain the labor relationship immediately", while "major fault" is defined as employees' intentional destruction of the employer or enterprise.

In view of this, in the long-term judicial practice, judges have established the principle of classification and comparison on the relationship between employees' fault degree and dismissal: "minor fault" cannot constitute the legal reason for dismissal, "serious fault" is the legal reason for dismissal, and "serious fault" and "major fault" constitute the legal reason for immediate dismissal. The principle of judgment is put forward in this way, but the specific determination is still carried out by the judge according to the different circumstances of the case. Therefore, in the settlement of labor contract disputes in France, the role of the judge has become crucial, and how he determines the degree of fault is directly related to the vital interests of both employers and employees.

The determination and supervision of the degree of fault by French judges directly comes from the authorization of Article 122- 14-3 of the Labor Law, which embodies the requirements of public order. In view of this, no labor contract, collective contract or agreement, or even internal rules of an enterprise, can stipulate in advance what kind of fault constitutes a "serious fault" and authorize the employer to dismiss employees. Even if there is such a provision, it does not bind the judge to identify and judge the fault. Therefore, it can be considered that since the Act1July 3 1973, the judicial supervision over the dismissal of employees by employers in France has been strengthened.

2. Legal procedures for dissolution

To stipulate and abide by the procedures for terminating labor contracts plays an important role in preventing employers from abusing the right to terminate labor contracts and protecting the legitimate rights and interests of workers. The laws of France 1986, 65438+1February 30, 989, and 65438+August 2 have detailed provisions on the procedures for dissolving labor contracts for personal reasons. Specifically, when an employer dismisses an employee for personal reasons, he must perform the following procedures:

The first is to inform the interview. The employer must notify the employee in writing to dismiss the interview by registered mail or personal delivery. The notice shall specify the purpose, date, time and place of the interview, and inform employees of their right to invite employee representatives to assist in the interview. During the interview, the employer has the obligation to explain the reasons for dismissal to the employee and freely listen to the explanation and defense of the employee.

The second is to issue a notice of dismissal. Article 122- 14- 1 in the first chapter of the Labor Law stipulates that the employer may send the dismissal notice to the dismissed employee by registering the recipient's signature. The date when the employee receives the notice is the starting point of the dismissal notice period. Article 122- 14-2 of the Labor Law requires employers to state the reasons for dismissal in the dismissal notice. Judicial practice holds that if the reasons are not stated in the notice of dismissal or the reasons are not specific enough, it is considered that the dismissal does not have the statutory "actual significant reasons", so the dismissal is declared invalid.

(b) layoffs due to economic reasons

1. feature

Layoff for economic reasons in French labor law is a kind of termination of labor contract referred to in a specific specification. Article 32 1- 1 in the first chapter of the Labor Law defines layoffs due to economic reasons as: (especially) employees' jobs are cancelled or changed due to economic difficulties or technological changes, or the labor contract is substantially changed, and the employer dismisses employees for one or more reasons that are not intrinsically related to employees, that is, layoffs due to economic reasons. This definition clearly shows that such layoffs have three characteristics:

First, there is no internal connection with employees, that is, dismissal is not based on employees' faults, physical health, professional skills and other factors. This "qualitative" will separate such layoffs and apply legal norms respectively.