public holiday or solidarity day?

public holiday or solidarity day?
public holiday or solidarity day?

Established by a law of June 30, 2004, following the heatwave of summer 2003, the solidarity day aims to ensure the financing of actions in favor of elderly or disabled people faced with situations of loss of ‘autonomy. It takes the form of an additional day of unpaid work for employees, and for employers a financial contribution of 0.3% based on total salaries (article L.3133-7 of the labor code).

Since a Leonetti law of April 16, 2008, it is no longer obligatory to retain Pentecost Monday as a day of solidarity. All companies can choose another day, like those in the hotel and catering industry which already benefited from this possibility because they work during this public holiday.

Who sets the solidarity day?

In principle, the solidarity day must be set by collective company or establishment agreement, or, failing that, by a sector agreement (art. L.3133-8 al.1 of the labor code). It is only in the absence of a company or branch agreement that the employer freely sets the solidarity day, after consulting the works council or, failing that, the staff delegates if they exist. . This procedure must be repeated every year.

The CHR collective agreement of April 30, 1997, nor the amendments concluded subsequently, make no provision relating to this day of solidarity. It is therefore up to the employer to set this day, while respecting a minimum of rules.

What date to remember?

The employer can decide that the solidarity day is held on Pentecost Monday (May 20 in 2024).

But he can choose to retain:
– another public holiday which is not worked, with the exception of May 1st, the only legal public holiday. For the departments of Moselle, Haut-Rhin and Bas-Rhin, December 25 and 26 nor Good Friday (March 29 in 2024) which precedes Easter Monday cannot be retained, just like the day of commemoration of the abolition of slavery in the overseas departments (different dates depending on the departments).
– One day of RTT (reduction in working time) in companies which apply this system in the form of rest days.
– The splitting of this day, by distributing the corresponding 7 hours over several days or any other method which allows the work of a previously non-worked day.

The solidarity day can also be taken on one of the two weekly rest days, because the law only requires one. However, the following cannot be considered as a day of solidarity:
– one day of legal paid leave. The employer cannot impose the taking of a day of paid leave on Pentecost Monday if this is the date that has been chosen (Cass. Soc. January 15, 2014, no. 11-19974).
– A day of compensatory rest, because it cannot be assimilated to a day previously not worked (Circ. DRT of April 20, 2005).

To the extent that the CHR collective agreement provides for the allocation of 4 ordinary public holidays in addition to May 1, employers can choose one of them, that is to say grant only 3 public holidays ordinary in addition to May 1st. They can also choose to deduct it from one of the 6 guaranteed public holidays granted by amendment no. 6 of December 15, 2009.

In certain cases the date chosen may be different

In principle, the date of the solidarity day chosen applies to all employees of the company. It is not possible to plan several days of solidarity depending on the different departments of a company.
As with any principle, there are exceptions allowing a different solidarity day to be set aside for each employee of the company, in the following cases:
– when the company works continuously (24 hours a day, seven days a week, Sundays and public holidays included);
– when the business is open every day of the year;
– if the employee does not work the solidarity day due to the distribution of his working hours, and it falls during his weekly rest period.

No remuneration

Work during the solidarity day is not paid. The law provides that this neutrality only applies within the limit of 7 hours. Hours worked beyond this must be paid. For part-time employees, this limit of 7 hours is reduced proportionally to the working time provided for in their contract. For example, for a part-time employee, the limit will be set at three and a half hours (7 ÷ 2).

For executives on the days package, the work of the solidarity day is added to the number of days fixed by the package agreement, without giving right to additional remuneration. Due to the establishment of this solidarity day, the legal annual working time is 1,607 hours per year. A ceiling that the profession must respect in the event of modulation of working time. As for annual package agreements in days, the ceiling has been set at 218 days.

Mention it on the pay slip

To avoid any problems, employers are strongly advised to indicate this solidarity day on the pay slip in order to be able to prove that it was actually carried out.

A civic obligation

The Council of State ruled that this day of solidarity does not constitute a day of “forced or compulsory labor” within the meaning of the International Labor Organization (ILO). The high court considered that this is a normal civic obligation in accordance with the stipulations of international conventions, in particular Article 4 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( Council of State November 9, 2007 No. 293987).

Likewise, in a decision of July 22, 2011, the Constitutional Council validated the principle of the solidarity day by deciding that it respects the principle of equality before the law. He had been called upon to rule on two priority questions of constitutionality transmitted by the Council of State and the Court of Cassation. Those who contested the constitutionality of the solidarity day invoked the breakdown of the principle of equality before the law and public offices, putting forward the following argument: the solidarity day only applies to employees and civil servants and excludes its scope of application: artisans, traders and liberal professions without employees, as well as retirees. For the Constitutional Council, the difference in treatment with retirees and self-employed workers is “directly related to the purpose of the law”, and concludes: “The establishment of the solidarity day does not constitute a a marked break in equality before public offices. » However, since April 1, 2013, retirees subject to income tax must also pay this solidarity contribution of 0.30% of their pension.



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