Collective Agreements: When Are Differences in Treatment Between Employees Legitimate?

Imagine you are the owner of a small building in Capbreton, with several apartments rented to tourism professionals. You have signed employment contracts with your employees, but you wonder: is it normal for your agency manager to benefit from a longer notice period than your maintenance agent? The question may seem technical, but it touches the heart of professional relationships in the real estate sector, which is particularly dynamic on our Landes coast.

Every property owner, every landlord, every property manager eventually faces these differences in treatment between employees. Are they justified? Can they be challenged? And most importantly, what legal risks do you run if you make a mistake in applying your collective agreement?

In 2015, the Court of Cassation provided a clear answer to these questions. In a ruling that has since become a reference, the judges established a fundamental principle: differences in treatment negotiated by representative trade unions are presumed to be justified. But what exactly does this change for you, as a property owner in Biscarrosse or a manager in Mont-de-Marsan? That is what we will break down together.

The Facts: A Story That Happens Every Day

Take the example of Mr. Dubois, owner of three tourist residences in Biscarrosse. He employs about fifteen staff divided into different categories: managers for administration, ETAM (Employees, Technicians, and Supervisors) for technical maintenance, and workers for routine tasks. Like many businesses in the sector, Mr. Dubois applies a collective agreement (an agreement negotiated between employers' organisations and trade unions) that provides for different rules depending on professional categories.

The story begins when a trade union, the FNPSECP CGT, challenges certain provisions of this agreement before the industrial tribunal (a specialised court for employment disputes). The union believes that the differences in treatment between managers and ETAM are not justified, particularly regarding the length of the notice period (the period to be observed before dismissal). According to the union, managers would benefit from a longer notice period without valid professional reason.

Mr. Dubois, represented by his employers' organisation, defends the idea that these differences correspond to distinct professional realities. Managers, he argues, have greater responsibilities, operate in a broader field, and therefore require a longer adjustment time in case of change. Initially, the industrial tribunal rules in favour of the union, considering that the employer has not sufficiently justified these differences.

But the case does not end there. The employers' organisation appeals, and the court of appeal reverses the decision. It considers that the differences are justified by the nature of the functions performed. The union, dissatisfied, then appeals to the Court of Cassation (an appeal before the highest judicial court). It is there that the Court of Cassation will make a definitive ruling, in a judgment that will set a precedent.

The Court's Reasoning — Broken Down

The Court of Cassation, in its judgment of 27 January 2015, adopts a two-step reasoning that deserves clear explanation. First, the judges recall the general principle: employment law prohibits discrimination between employees. In other words, you cannot treat people differently in comparable situations without valid reason.

But be careful: the court introduces a crucial distinction here. When differences in treatment are established through collective conventions or agreements, negotiated and signed by representative trade unions, they benefit from a presumption of justification. What does this mean in practice?

In simple terms, if your collective agreement (like one that a property owner in Capbreton might apply for their employees) provides for different rules between professional categories, these differences are considered legitimate until proven otherwise. It is up to the party challenging them (a union, an employee) to demonstrate that they are "unrelated to any professional consideration."

The court bases this reasoning on several elements. First, trade unions are "entrusted with defending the rights and interests of employees." Second, employees participate directly in their authorisation through their votes. In other words, since the unions that negotiate are democratically representative, it can be presumed that what they negotiate is in the employees' interest.

In the specific case of Mr. Dubois in Biscarrosse, the court examines the arguments. The union contested that managers actually had greater responsibilities requiring a longer notice period. But the court considers that, since this difference is included in a negotiated collective agreement, it is up to the union to prove that it has no link to professional considerations. In this case, the union did not provide this proof.

What few people know: this decision represents a confirmation and strengthening of prior case law. It fits into a logic of respecting the autonomy of the social partners (employers' and trade union organisations). The judges believe they should not substitute themselves for the negotiators to assess the appropriateness of differences in treatment, unless those differences are manifestly devoid of any professional basis.

What This Changes for You — Practically

If you are a property owner-landlord in Mont-de-Marsan or a real estate manager in Capbreton, this decision has very practical implications. First, it offers you enhanced legal security when applying your collective agreement. You no longer have to systematically justify each difference in treatment: it is up to the challenger to prove that these differences are unjustified.

Take a realistic numerical example. Imagine you manage a condominium in Biscarrosse with two employees: a maintenance technician (ETAM) and a team leader (manager). Your collective agreement provides for a 2-month notice period for the technician and a 3-month notice period for the team leader. Before this decision, in case of a challenge, you would have had to demonstrate why this difference was justified. Now, it is up to the employee or union challenging it to prove that this difference has no link to the functions performed.

If you are a professional tenant (a trader renting premises, for example), this decision also impacts your relationships with your own employees. You must carefully check the collective agreement applicable to your sector of activity. The differences in treatment it provides between categories are now more difficult to challenge, which can influence your personnel management decisions.

For purchasers of real estate with staff (hotels, tourist residences, rental properties), this case law is crucial during the pre-acquisition audit. You must examine not only the applicable collective agreement but also assess the risks of litigation over differences in treatment. A dispute on this point can lead to significant compensation: in my practice, I have encountered cases where claims exceeded €20,000 per affected employee.

Be careful, however: this presumption of justification is not absolute. If you unilaterally decide to create differences in treatment not provided for by the collective agreement, you lose this protection. Similarly, if the differences are manifestly discriminatory (based on age, gender, origin...), they remain prohibited. The decision only concerns "negotiated" differences within the collective framework.

Four Tips to Avoid This Type of Dispute

• Always check the collective agreement applicable to your activity before establishing any employment contract. In the real estate sector, several agreements may coexist depending on whether you are a manager, developer, or property owner-landlord.
• Document precisely the differences in functions between your employees. Even with the presumption of justification, a clear description of responsibilities, scope of action, and required skills strengthens your position in case of a challenge.
• Consult representative trade unions before modifying work organisation. A unilateral change in working conditions can undermine the protection offered by the negotiated collective agreement.
• Audit your salary practices regularly, at least every two years. A specialised lawyer can identify potential risks and advise you on the compliance of your application of the collective agreement.

Deep Dive: Related Case Law and Developments

The 2015 decision fits into a coherent line of case law. Already in 2009, the Court of Cassation had ruled in judgment No. 07-44.372 that "differences in treatment resulting from a collective convention or agreement do not constitute discrimination provided they are justified by objective and relevant elements." The 2015 decision goes further by establishing a presumption of justification.

This evolution reflects a trend of courts respecting the autonomy of social partners more. Judges consider that professional negotiators are better placed than them to assess on-the-ground realities. This approach is particularly relevant in the real estate sector, where professions are diverse and evolve rapidly with new technologies and regulations.

For the future, this case law means that collective agreements will take on even greater importance. Negotiations between employers' organisations and trade unions become the privileged place to define the rules of the game. Property owners and real estate professionals therefore have every interest in getting involved in these negotiations, either directly or through their professional organisations.

What does this mean for you in Mont-de-Marsan or Capbreton? That preventing disputes now largely depends on good knowledge and rigorous application of collective agreements. Litigation will likely shift towards challenging the representativeness of the signatory unions or towards demonstrating that certain differences are completely unrelated to professional considerations.

Checklist Before Acting

1. Identify the applicable collective agreement: Check with the Direccte (Regional Directorate for Enterprises, Competition, Consumption, Labour, and Employment) or consult a specialised lawyer.

2. Analyse the differences in treatment provided: List all distinctions between professional categories (remuneration, notice periods, leave, benefits...).

3. Verify the representativeness of the signatories: Ensure that the trade union organisations that negotiated the agreement were indeed representative at the time of signing.

4. Document professional justifications: Even with the presumption, prepare objective elements justifying the differences (job descriptions, organisational chart, mission descriptions).

5. Anticipate developments: Collective agreements evolve. Plan regular monitoring of modifications and their impact on your organisation.

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →