Since the Law called « Travail » No 2016-1088 of 8 august 2016 on work, social dialogue modernization and securing of working life, the right to disconnection is now in 2 major areas:
- As part of compulsory annual negotiation
- As part of a flat-rate pay agreement covering days worked
Disconnection and Compulsory Annual Negotiation
The Law No 2015-994 of 17 august 2015 on social dialogue and employment, modified the rules of compulsory collective negotiation.
Since 1st of January 2016, the obligations of negotiating in the company are gathered round 3 blocks. One of them is dedicated to annual negotiation on professional equality between women and men and also on quality life at work (the content of which is specified in the article L2242-8 of French Labour Code, and has been modified by the Law called « Travail » No 2016-1088 of 8 august 2016).
A new discussion must be addressed during this negotiation as of 1st of January 2017: the right to disconnection.
The negotiation has to deal, in particular, with the terms of the employee’s right to disconnection, and the company establishment of control devices concerning the use of digital tools, for the purpose of ensuring the respect of rest time as well as personal and family life. The goal is to ensure the effectiveness of the right to time off for the employees.
In the absence of a company agreement, the employer has to elaborate a charter, after consulting the works council or the staff representatives. This charter will define the terms of the right to disconnection exercise and will provide for the execution of training actions and awareness to a reasonable use of digital tools.
Disconnection and flat-rate pay agreement covering days worked
The Law « Travail » adjusts provisions concerning flat-rate pay agreement covering days worked in the aim of bringing more legal security to the companies because of the inflexibility jurisprudence on the validity terms of the collective agreements which set up this device.
The Law « Travail » resumes the existing mandatory clauses (employee group which are potentially subject to conclude an agreement, number of working days, in the limit of 218 days, annual working time on which the flat-rate pay agreement is established), and adds new ones including the terms of the right to disconnection for the employee.
Furthermore, the Law provides for the employee to compensate the gaps of collective agreement in particular if the agreement doesn’t have terms of the right to disconnection.
In this case, the employer has to define and communicate, by any means, to the employees the terms of the right to disconnection. In the companies which have more than 50 employees: theses terms are in a charter.
The employers having concluded a flat-rate pay agreement covering days worked based on collective agreements that do not contain all of the new mandatory clauses (including the right to disconnection) could secure the existing agreements on the conditions above-mentioned trough individual amendment.