problems related to the economic situation of enterprises and the need to protect workers led the government to create types of employment contracts and to regulate their use and operation. Chapter III of the Civil Code: "From the work contract and industry." Including the Section 1: From Hired servants and workers. "(Art. 1780) has not disappeared. It continues to contain the guiding principles of employment contract.
Given the importance of the litigation which leads the provisions regarding the duration of the employment contract was limited the following analysis, presentation of the differences between the open-ended contract (CDI), the fixed term contract (CDD).
regulation of the CDI is the common law employment contracts. This rule was affirmed by the Act No. 2008-596 of 25 June 2008. It is directly derived from general principles of Chapter III of the Civil Code. The relationship of work can be broken unilaterally on either one as the other party, ie, either the employer (dismissal for personal reasons or for economic reasons, retirement) or the employee (resignation, retirement). Under Article L. 1243-1 of the Labour Code, "Unless the parties agree, the contract term employment can be terminated before the term expires in case of gross negligence or force majeure. It should mean that where an employee has been contracted qualifying term, the fact that he has not passed an examination for a certificate of professional training, not not constitute an event of force majeure to justify early termination of employment by the employer (Soc. October 29, 2008, No. 697 of 1 March 2009). Bringing this landmark case that made by the same House December 7, 1995 (appeal No.: 92-43113, published in the Bulletin of the Supreme Court and also available on Legifrance). Where the employer imputes to the employee, the commission of serious misconduct may result in termination of a CSD, it is entitled, during a preliminary interview, as witness an employee of the establishment to confirm the remarks held against the employee that it was immediately denied. This hearing does not constitute an abuse of the purpose of this interview or an impediment to the court then to retain evidence of the value and scope of a certificate issued by the (Social Chamber, May 5, 2010, appeal No. 09-40737, Lexis-Nexis, and Legifrance).
CDD gives rise to significant litigation because of the conditions limiting its use, which are not always respected by businesses. The conclusion of a CDD is limited to performing a specific task and temporary and only in cases specified by law. The appeal to an employment contract term called "customary" does not relieve the employer to establish a written contract with the precise definition of its cause, pursuant to Article L. 122-3-1 of the Labour Code (Soc. November 28, 2006, BICC No. 657 of March 15, 2007). Furthermore, the contract must state the reason because of which the employer uses the term contract (Court of Appeal of Lyon, ct0535, March 27, 2009, No. RG: 07/08247, BICC n ° 717 of 1 March 2010), this type of contract can not have neither the purpose nor the effect of permanently assigned a job in the normal and permanent activity of the company offering the service. It may, pending the inauguration of a new employee to fill such a person Instantaneous absent (illness, holidays ...) or temporary replacement of an employee who permanently left the company. Were reclassified as permanent contracts, fixed-term contracts concluded for the hiring of security officers assigned to a national museum in periods where there were holding temporary exhibitions which had occurred regularly, at the same frequency on the same annual periods on the same site and at an identical mode of organization. These exhibitions were an ongoing activity and not occasional, even if it was intermittent. The Court of Appeal also found that no parts are allowed to determine whether the employees concerned had been recruited during a particular increase in activity, which could justify the use of fixed-term contract. (Soc., 10 December 2008, appeal No.: 06-46349 06-46350 06-46351 06-46352 06-46353 06-46354 06-46355 06-46356 06-46357 06-46358 06-46359 06-46360, BICC No. 675 of 1 February 2008 BICC No. 700 of 15 April 2009 and Legifrance). Similarly it is considered that be reclassified as a contract of indefinite duration contract concluded for fixed-term increase in activity driven by the acquisition of a store which the employer intends to verify the effectiveness, since these jobs, which is part of the normal and permanent activity of the company is not temporary. (Soc. - January 13, 2009, appeal No.: 07-43388, BICC No. 702 of 15 May 2009 and Legifrance). The possibility for employers to conclude fixed-term contracts in industries where there is constant use of use of such contracts and which include the entertainment industry, can be used for filling positions temporary in nature, each contract term before having to achieve the purpose for which it was concluded. This was not the case of a person engaged in employment as a cashier which continued full-time employment as a dancer (Court of Appeal of Lyon, ct0535, March 27, 2009, No. RG : 07/08247, cited above. But Authorisation to use temporary agency work in the temporary absence of an employee means absence of firm as well as its usual position work. An employee may request the reclassification of its contracts into a permanent contract if he was hired to replace an employee seconded from his regular position to be assigned to another project as a trainer. (Soc. - February 25, 2009, BICC No. 705 of 1 July 2009).
Temporary workers hired by several mission contracts and whose employment contract is reclassified as a permanent contract binding him to the business user is not entitled to back pay in respect of periods not worked from the missions only if It was held at the disposal of the business during these periods to perform work (Social Chamber, 9 December 2009, appeal No. 08-41737, Legifrance).
On termination the employee may receive compensation and special measures to compensate for the insecurity of employment, compensation of precariousness is due where no contract of indefinite duration for the same job or a similar job has been offered to the employee After the fixed term contract (Soc. October 3, 2007. BICC No. 675 of 1 February 2008). Such compensation shall be forfeited if the employee after his employment contract term, it is reclassified as a work contract of indefinite duration by the industrial tribunal. (Soc., 24 June 2003, Bull. 2004 No. 203, Soc., March 30, 2005, Bull. 2005, No. 106).
It follows from the combination of Article L. 122-1, L. 122-1-1, L. 122-3-10 and D. 121-2 of the Labour Code in certain sectors of activity listed by decree or by agreement or by collective agreement extended, some jobs may be filled by employment contracts of limited duration. Practice are called "fixed-term contracts to use, it is, for example, jobs of extras in hotels or restaurants, some jobs in logging operations, ship repair, in performances in production Film in the investigations and surveys in the phonographic publishing in professional sports, and cooperation activities, technical assistance, engineering and research abroad. But for the seasonal activity is deemed to justify the utilisatioin of fixed-term contracts, it is necessary that the company that employs the employee applicant belongs to the sectors corresponding to the main business of the company (Soc. - 27 September 2006. BICC No. 653 of January 15, 2007). The constant character of the use is assessed relative to industry-defined order, agreement or collective agreement extended. The business referred to in section D. 121-2 of the Labour Code is the broader, professional sports and not amateur sports. In the area of professional sport, it is not in constant use not to recruit doctors in training centers clubs by contract of indefinite duration. Therefore, the employment contract of the employee, physician training center, is deemed permanent. (CA Lyon, ch. Soc., November 16, 2007. - RG No. 07/02441, BICC No. 685 of 1 July 2008). But the fact that the use of temporary contracts is provided by a collective agreement does not relieve the judge to verify that the resort to the use of successive fixed-term contracts is justified on objective grounds that agree on the existence of concrete evidence proving the temporary nature of the employment (Social Chamber May 26, 2010 appeal No. 08-43050, BICC No. 729 of October 15, 2010 and Legifrance).
The Framework Agreement on fixed-term work concluded March 19, 1999 and implemented by Directive No. 1999/70/EC of 28 June 1999, which aims to in clauses 1 and 5, prevent abuse arising from the use of fixed-term contracts successive. According to the Social Chamber of the Court of Cassation (Soc. - January 23, 2008. 2 stops, BICC No. 680 of April 15, 2008), the abuses resulting from the use of successive fixed-term contracts, requires the judge to verify that the use of such contracts is justified on objective grounds that agree on the existence of concrete evidence proving the nature of temporary employment (2 stops Soc. - January 23, 2008, BICC n ° 684 of 15 June 2008). Thus, employment in a company that manufactures and sells frozen pizza throughout the year with only periodic increases in production activity has not seasonal meaning of Article L. 122-1-1 3 of the Labour Code (Soc. December 5, 2007. BICC No. 679 of April 1, 2008). The employment contract concluded for the duration of a project is, in principle, a contract of indefinite duration unless it is found in one of the cases listed in Article L. 122-1-1 of the Labour Code which may be applied to a fixed term contract (Soc. Mar. 7, 2007, BICC No. 664 of 1 July 2007). However the Court (Soc., 23 January 2008 quoted above, 2nd case) has declared the application for reinstatement of a professor of art education who served for fourteen years consecutive school.
The civil penalty for the misuse of the employment contract of limited duration, is the right to obtain the reclassification of contract permanent contract (CA Grenoble, ch. Soc., April 19, 2006. BICC No. 661 of May 15, 2007, and CA Colmar ch. Soc., Sec. B, November 14, 2006, BICC No. 661 of May 15, 2007) and that reclassification as fraud unless the employee is one who can claim (Soc. - 18 October 2007. BICC No. 675 of 1 February 2008), takes effect from the first day of the mission of the employee (Soc. October 11, 2006. BICC No. 654 of 1 February 2007). In case of dispute on the basis of temporary employment, it is the user company to prove the reality of the ground set forth in the contract to justify the use of a fixed term contract. Thus, the Social Chamber quashed the decision of a Court of Appeal to reject the request reclassification of the employment relationship as an employment contract of indefinite duration, had rejected the request of the employee by retaining it No had not shown he exercised within society, the tasks involved in normal activity and standing. (Soc. November 28, 2007, BICC No. 678 of March 15, 2008). Under Article L. 122-3-13 of the Labour Code, the decision by the Labour Court ruling on an application for reclassification is fully enforceable.
On general principles relating to the Office of the Judge and retraining, consult the Judgement of 21 December 2007 issued by the Assembly plenaries of the Court of Cassation on the Report of Mr. Loriferne, Councillor rapporteur and the his view of Drops First Advocate General (BICC No. 680 of April 15, 2008). The fact remains that although the parties can freely transform the nature of their relationship, initially indeterminate, a fixed-term contract, the terms of this transformation are, according to the Social Chamber of the Supreme Court, subject to special conditions. It essentially held that the prohibition in advance to waive the right to rely on the rules relating to dismissal from Article L. 122-14-7, paragraph 3, became L. 1231-4 of the Labour Code makes no effect signing a temporary contract while the permanent contract is still running and having found that the permanent contract was not broken, and therefore that the parties had remained bound by the original contract of indefinite duration (Social Chamber March 25, 2009, appeal: 06-46330, BICC No. 707 of 15 September 2009 and Legifrance).
The fixed-term contracts concluded without a specific term, to replace an absent employee automatically ceases upon the death of the employee being replaced. The fact that the substitute employee is absent on the first working day following the death does not deprive the employer of the opportunity to notify him of this event and therefore the arrival of the term, and does not extend the deadline . The request for reclassification as a permanent contract, fixed-term contract signed to replace an absent employee has not been substantiated (Soc. February 4, 2009, appeal: 07-42954, BICC No 704 of 15 June 2009 and Legiufrance). Note that if the employee keeps his job after the expiry of his fixed-term fixed transforms her contract employment contract of indefinite duration, however, unless the parties agree otherwise, this change affects only the term but leaves unchanged the other terms of its implementation. Thus the fact that for the reasons above, the contract of an employee became a permanent contract could not get him to claim that its commitment in an initial part-time job became a full-time work (Soc. - May 28, 2008, BICC No. 689 of October 15, 2008).
The new employment contract (CNE), established by Ordinance No. 2005-893 of 2 August 2005 and Article L. 1223-4 of the Labour Code, was repealed by section 9 of Act No. 2008-596 of 25 June 2008 (JCP S 2008, 1391) which provides for conversion into permanent contracts in progress at the CNE publication date of the law, or June 26, 2008 (Cass. soc., 1 July. 2008, No. 07-44. 124, F-P + B + R + I. No BICC) See Judgement and the release by the Public Chamber on the site of the Court of Cassation.
On the nature and terms of the contract of collaboration between lawyers see the word "lawyer" in fine.
Texts
Labour Code (renumbered), Art. L1111-2 L1234-1 L1111-3 L4532-8 L1522-8 L1225-38 L1221-2 L1242-1 et seq, L1225-6 L2323-53, L1225-62 L1226- 18, L1226-19 L1226-20 L1226-21 L1233-78 L3142-94 L1237-3 L1237-6 L1237-10, L. 1242-2-2, L1242-5 L1243-1 ff, ff-8 L1248, L1251-35 et seq, L1271-5 L1272-4 and S-5 L1273, L1274-4 L2144 -2,-4 L2222, L2241-2 L2242-9, L2261-10 L2261-11 et seq, L2323-17, L620-10, L2412-1 ff, ff-7 L2421, L3122 -15, L3132-5 L4142-2 L4143-1, L4153-5 L4154-1 L4154-2 L4154-3-4 L4311, L5122-2-5 L5132, L5132-9-7 L5133, L5134-9 et seq, L5134-41 et seq L5213-9, L5423-8 L5425-5 L5522-11 et seq, L6321-13 L6322-11 L6322-30 L6322-41-1-3 L6523, L7122-23 L7123-14 Code
Labour (old numbering), Art. L1243-12 L1111-2 L1242-10 L1242-6 L4532-8 L1234-1 L4154-2 L1242-2 L1243-8, L212-8, L1225-62 L931-20-2, L1242 -3, L1243-2 L1245-2, R4523-1, L122-3-2, L122-1 L122-28-9-2 L5122, L4154-1 L5132-5, L212-4 L5132-9 , L5134-24 L5134-29 L5134-48 L5213-9, L5423-8 L3132-5 L6322-37 L6322-39, R4453-37, L223-14 L122-3-4, L122-3 -8, D1221-23, D1221-29, L322-4-15-4, L122-1-1. L322-4-12, L122-3-1, L132-6, L132-8, R4612-8, L132-12 L132-27, R1234-11, R322-20, D4622-43, D1242-1 D1242-2 D1242-3, D1242-4 D1242-6 D1242-7 D1243-1, R1245-1, L412-18, D5134-124.
Ord. No. 2006-433 of 13 April 2006 on the experimental work of the transition agreement.
Decree No. 2006-1070 of 28 August 2006 (OJ 29) (CSD "senior")
L. No. 2008-596 of 25 June 2008 on the modernization of the labor market.
Decree No. 2009-1289 of 23 October 2009 amending Section D. 4154-1 of the Labour Code (prohibited for holders of a CSD.
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