The Court of Cassation rendered an interesting judgment on November 6, 2024 (Cass. soc., 6-11-24, n°22-21966) on the consequences, in terms of remuneration, of the presence of non-working public holidays in the during a period when employees are placed on partial activity.
In this case, an employer belonging to the collective catering sector places employees on partial activity due to the Covid 19 pandemic. During the period, 4 days (other than the 1is May) were unemployed under the collective agreement applicable to the company.
A union applies to the court to order the employer to pay the usual remuneration to employees, for days usually off in the company, under a provision of the applicable collective agreement.
The employer was accused of having paid, for the days in dispute, only 70% of the remuneration prior to the partial activity, by application of the rules provided for partial activity.
On appeal, the employer is ordered to pay the employees concerned a back pay corresponding to 100% of their contractual remuneration. He therefore filed a cassation appeal.
The employer maintains in cassation, that by virtue of the rule of salary maintenance for non-working public holidays provided for in article L 3133-3 and the rules for compensation for partial activity provided for in articles L 5122-2 and R 5122-18, in the event of placement in partial activity, the remuneration of employees for non-working public holidays must be up to 70% of the remuneration before the placement in partial activity, and not 100% of the contractual remuneration, as the court of appeal ruled.
The Court of Cassation does not validate the employer's argument, and thus agrees with the trial judges.
She claims that when an employee is placed in a position of partial activity, working public holidays give rise to the right to hourly compensation, paid by the employer, corresponding to a part of their previous remuneration, the percentage of which is fixed by decree of the Council of State , while normally non-working public holidays do not fall under partial activity, so that the employer must ensure payment of the usual salary to employees with at least three months of seniority in the company
.
The Court of Cassation thus confirms the judgment of the Court of Appeal and rejects the employer's appeal.
As a practical consequence of this ruling, public holidays usually not working in a company or establishment are paid as a working day.
If employees are placed on partial activity, during a period which includes non-working public holidays, the employer must, in terms of pay, treat them as normal working days, therefore pay them in full, and not as non-working days compensated for partial activity.
The solution seems logical, to the extent that, apart from any hypothesis of partial activity, when public holidays are usually non-working, employees with at least 3 months of seniority must not suffer any loss of salary (art. L 3133-3). In the present case, partial activity or not, the employees would not have worked during the days in dispute, and they would still have been paid normally, under the law and the collective agreement applicable to them.
This stop thus serves as a reminder of the treatment that must be given to non-working public holidays, which are paid as usual working days.
The judgment of the Court of Appeal was nevertheless overturned on one point, which consisted of favorably accepting the union's request for the payment of back wages for the disputed days. The Court of Cassation recalls that the regularization of the situation of employees is an action which is personal to them. A union does not have the power to request back pay in place of employees.
Employees will therefore have to individually claim their dues.
