Collective Agreement and Seniority Bonus: A Game-Changing Decision for Employees

Imagine: you have been working for 15 years in the same biscuit factory in Guebwiller, and your employer refuses you the additional days of leave provided for your seniority. He brandishes a company agreement signed in 1999, which, according to him, supersedes the national collective agreement. You are entitled to ask yourself: can a company agreement really cancel out benefits acquired through the collective agreement?

The Court of Cassation answered on 13 October 2021, in a case opposing several employees of a biscuit factory to their employer. It ruled in favour of the employees: the company agreement could not deprive them of the seniority bonuses and leave provided for by the national collective agreement for the miscellaneous food industries. A decision that has concrete implications for thousands of employees in France.

This judgment clarifies the hierarchy between collective agreement and company agreement. For employees, it is a breath of fresh air: they can now claim back pay and additional days off. For employers, it is a wake-up call: they must check that company agreements comply with collective agreement provisions.

The Facts: A Story Like Many Others

The story begins in a biscuit factory located in Thann, in the Haut-Rhin. Mr X and several of his colleagues, all employees of this company, note that they do not receive the seniority bonus provided for by the national collective agreement of the 5 miscellaneous food industries branches of 21 March 2012. Worse, they are not entitled to additional days of leave linked to their seniority, even though the collective agreement explicitly provides for them.

The employer, for his part, relies on a company agreement signed on 13 December 1999. This agreement, adopting the provisions of the national interprofessional agreement (ANI) of 18 March 1999 on the reduction of working time, stipulates that companies that switched to 35 hours before the legal date may be exempted from applying the seniority bonuses and leave of the collective agreement. The employer therefore considers himself entitled, as the biscuit factory switched to 35 hours as early as 1999.

The employees bring the matter before the Mulhouse employment tribunal, which rules in their favour at first instance. The employer appeals, and the Colmar Court of Appeal overturns the judgment: it validates the company agreement and dismisses the employees. The latter appeal to the Court of Cassation. The case goes up to the Court of Cassation, which quashes the appeal judgment on 13 October 2021, with reference to the national collective agreement and its extension order.

The Reasoning of the Court — Analysed

The Court of Cassation based its decision on a fundamental principle of labour law: the hierarchy of norms. In essence, a collective agreement (negotiated at national level by branch) prevails over a company agreement, unless the collective agreement itself allows the company agreement to derogate. Here, the collective agreement for the miscellaneous food industries provides for seniority bonuses and leave, without allowing a company agreement to abolish them.

The Court of Appeal had nevertheless held that the 1999 company agreement, based on the 1999 ANI, was applicable. But the Court of Cassation considered that this ANI could not authorise a company agreement to set aside more favourable collective agreement provisions. It therefore violated the collective agreement and the extension order that makes it binding on all companies in the branch.

Concretely, the Court of Cassation interpreted Article 1 of the extension order of 24 May 2013, which makes the collective agreement binding. It considered that the 1999 company agreement, prior to the 2012 collective agreement, could not survive the latter if its provisions were less favourable. This is an application of the principle of favour: in labour law, the norm most favourable to the employee prevails.

This is not a reversal of case law, but a confirmation of a constant principle. The Court of Cassation has already ruled in the same sense in previous decisions (e.g., Soc., 17 November 2016, n°15-21.789). The originality of this case lies in the presence of a company agreement prior to the collective agreement, which some courts had considered valid. The Court of Cassation puts an end to this uncertainty.

What This Changes for You — Practically

If you are an employee of a biscuit factory or any other company covered by the collective agreement for the miscellaneous food industries, and your employer refuses you the seniority bonus or additional leave, you can now claim them. The decision opens the right to back pay for the seniority bonus, calculated according to your seniority (e.g., 3% of salary after 5 years, 6% after 10 years, etc.). Additional seniority leave is also due: for example, 1 day after 5 years, 2 days after 10 years, etc.

Let us take a worked example: an employee in Thann, with 15 years of seniority and a gross monthly salary of €2,200, would be entitled to a seniority bonus of 6%, i.e., €132 per month. Over 3 years, this represents a back pay of €4,752, not including associated paid leave. Add 5 additional days of leave per year (for 15 years of seniority), valued at about €500 per year, i.e., €1,500 over 3 years. In total, nearly €6,250 of potential back pay.

If you are an employer, this decision obliges you to review your company agreements. If you have an agreement prior to the collective agreement that abolishes collective agreement benefits, you must repeal or renegotiate it. Failing that, you risk being ordered to pay back pay and damages for unfair performance of the employment contract.

Note: this decision only concerns companies that fall under the collective agreement for the miscellaneous food industries. But the principle is transferable to other branches. If you are in doubt, consult your collective agreement.

Four Tips to Avoid This Type of Dispute

• Check your applicable collective agreement: every company must display the collective agreement it falls under. If you are an employee, ask your employer for the full text. On the website legifrance.gouv.fr, you can find all agreements in force.
• Compare your company agreement with the collective agreement: if your company agreement offers less than the collective agreement, it is probably illegal. Do not hesitate to consult a lawyer specialising in labour law to have your situation checked.
• Keep all your payslips: in case of a dispute, you will need to prove that you did not receive the bonuses or leave. Payslips are the strongest evidence. Keep them for at least 5 years after the end of your contract.
• Act quickly: the limitation period is 3 years for back pay (Article L.3245-1 of the Labour Code). Do not delay in claiming your rights, especially if you are still in the company, as you might face pressure. A registered letter to the employer is a good start.

Further Reading: Related Case Law and Developments

The Court of Cassation has already had the opportunity to rule on the hierarchy between collective agreement and company agreement. In a decision of 17 November 2016 (n°15-21.789), it held that a company agreement cannot derogate from a collective agreement if the latter does not allow it. More recently, in a decision of 8 July 2020 (n°18-23.764), it specified that the principle of favour applies even in the presence of a company agreement concluded before the collective agreement.

The trend of the courts is therefore clear: judges protect collective agreement benefits, especially when they are linked to seniority. This case law is part of a logic of protecting the employee, considered the weaker party in the employment relationship. In the future, we can expect the Court of Cassation to continue in this direction, particularly for other benefits such as 13th-month bonuses or redundancy payments.

For employers, the challenge is to renegotiate company agreements to bring them into line with collective agreements, on pain of litigation. For employees, it is an incentive to find out about their rights and not hesitate to enforce them.

In Practice: What to Do

FAQ:

1. Can I claim back pay for seniority bonus if I left the company more than 3 years ago? No, the three-year limitation period runs from the date the salary should have been paid. If you left the company more than 3 years ago, the back pay is time-barred.
2. What if my employer refuses to grant me seniority leave? Send him a registered letter with acknowledgement of receipt asking for the benefit of these days off, referring to the collective agreement and the Court of Cassation decision. In case of refusal, bring the matter before the employment tribunal.
3. Does this decision apply to all collective agreements? The principle is general, but each collective agreement may contain specific clauses that allow or disallow company agreements to derogate. The text of your agreement must be checked.
4. How much does an employment tribunal procedure cost? The procedure is free, but it is advisable to be assisted by a lawyer. Fees vary: count between €500 and €2,000 for a simple case, sometimes more if the case is complex. Some lawyers offer a first consultation at a fixed price (e.g., €45). Lawyer's fees can be ordered against the losing party.
5. Can I act alone or do I need a lawyer? You can act alone before the employment tribunal, but the assistance of a lawyer is strongly recommended, especially if the employer is assisted. The lawyer will help you build a solid case and argue legally.

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