Commission and Minimum Wage: A 1971 Decision Still Relevant for Sales Employees

Imagine: you own a ready-to-wear boutique in Mougins, on the French Riviera. You employ a saleswoman, to whom you pay a modest basic salary but a generous commission on each sale, called a 'tantième'. Thinking you are doing the right thing, you assume the total far exceeds the minimum wage provided for by the collective agreement. But a question nags at you: does this commission really count for checking compliance with the minimum wage? A decision of the Court of Cassation from 1971, still relevant today, provides a clear answer.

This case, decided over fifty years ago, pits a sales employee against her employer in the Nantes region. But it concerns any employer or employee in the novelty goods trade (textiles, clothing) and related specialties. The heart of the dispute? Article 27 of the collective agreement provides for the setting of minimum wages, but says nothing about the commission. So, must this variable additional remuneration be included to reach the minimum? The Court answers yes, unless there is a mandatory text to the contrary. Let us decode this decision which, although old, remains a reference for wage disputes.

But what does this actually change for you, employer or employee, in Mandelieu or elsewhere? How can you avoid litigation? In this article, I explain the facts, the judges' reasoning, and give practical advice based on my experience as a lawyer specialised in employment and property law. Because yes, even in property law, we come across cases where the remuneration of sales employees (caretakers, concierges, management company staff) raises similar questions.

The facts: a story like many that happen every day

Mrs X, employed in a clothing store in Nantes, receives a modest basic salary, supplemented by a commission, i.e., a percentage of the sales she makes. Her employer, believing that this commission is part of the remuneration, considers that the total paid exceeds the minimum wage set by the national collective agreement for the novelty goods trade and related specialties of the Nantes region. But Mrs X disputes this: according to her, the commission is an element of remuneration that should not be taken into account for calculating the minimum contractual wage, because Article 27 of this agreement only provides for the fixing of minimum wages, without mentioning commissions.

The conflict arises from this difference in interpretation. The employer thinks he is complying with the law by paying a total above the minimum; the employee believes that the minimum must be guaranteed independently of commissions. She brings the case before the industrial tribunal, which rules in her favour. The employer appeals, but the court of appeal confirms: the commission must be excluded from the calculation of the minimum wage. The employer then appeals to the Court of Cassation.

Before the Court of Cassation, the employer argues that nothing in the collective agreement prohibits including the commission in the minimum wage. The employee, on the other hand, maintains that since Article 27 only mentions 'minimum wages', the commission, being a variable supplement, cannot be used to reach them. The Court must decide: is the commission an element of remuneration to be included in the calculation of the minimum wage or not?

The reasoning of the court — dissected

The Court of Cassation, in its judgment of 23 June 1971, quashes the decision of the court of appeal. It holds that Article 27 of the collective agreement 'only provides for the fixing of minimum wages' and that a commission granted to a sales employee in proportion to the sales she makes constitutes an element of remuneration that must be included in the calculation of the minimum wage, in the absence of a mandatory text to the contrary. In other words, since the collective agreement does not specify that the commission must be excluded from the minimum wage, it must be included.

This reasoning is based on the principle of freedom of contract and the absence of an express provision prohibiting inclusion. The judges consider that the collective agreement sets an overall minimum, and that any sum paid to the employee, whatever its nature, contributes to reaching that minimum, unless the contractual text excludes it. In short, for the Court, the commission is not an 'extra' to be added to the minimum; it is an integral part of the remuneration used to verify compliance with the minimum wage.

However, be aware: this decision does not mean that the employer can reduce the basic salary to zero and base everything on commissions. The minimum contractual wage must be guaranteed each month. If sales are low, the commission may be insufficient, and the employer will then have to make up the difference to reach the minimum. What few people know is that this solution is now enshrined in Article L. 3231-3 of the French Labour Code, which provides that bonuses and gratuities that are supplementary to salary are included in the minimum growth wage (SMIC) unless expressly excluded. The same logic applies to contractual minima.

What this means for you — concretely

For an employer in Mandelieu, this decision means that you must check that the total paid (basic salary + commission) actually reaches the minimum contractual wage, and not just the basic salary. If it does not, you must pay additional remuneration to reach the minimum. For example, if the contractual minimum is €1,800 gross per month, the basic salary is €1,200 and the commission is €500, the total is €1,700: you must therefore pay an additional €100 to reach the minimum.

For an employee, if you are paid a basic salary plus commission, check your payslips. If your basic salary alone is below the contractual minimum, your employer must make up the difference. You can claim back pay for the last three years (three-year limitation period applicable to wages). undefined, I have come across cases where saleswomen in luxury boutiques in Cannes received high commissions but a very low basic salary; they were unaware that the contractual minimum had to be guaranteed independently.

For a landlord who employs a caretaker or concierge, the same rule applies if the contract provides for a basic salary and benefits in kind (accommodation). These must be included in the calculation of the minimum wage, unless the collective agreement excludes them. So check your collective agreement.

Four tips to avoid this type of dispute

• Check your collective agreement: Read carefully the provisions relating to the minimum wage and excluded elements of remuneration. If the text is silent, the commission (or any variable bonus) counts towards reaching the minimum.
• Draft a clear employment contract: Distinguish between the basic salary and commissions. Specify that the total must at least equal the contractual minimum, and that if commissions are insufficient, a supplementary payment will be made.
• Carry out monthly monitoring: Each month, compare the total paid to the contractual minimum. If there is a shortfall, pay the difference before the end of the following month. This avoids litigation.
• Consult a lawyer lawyer: Before changing the remuneration structure or if in doubt, seek advice. A 30-minute consultation can save you months of proceedings and back pay claims.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

This 1971 decision is part of a consistent line: the Court of Cassation considers that, unless the collective agreement excludes them, all elements of remuneration (bonuses, commissions, benefits in kind) contribute to the minimum wage. A more recent case can be cited: Cass. soc., 12 January 2011, no. 09-42.892, which holds that a seniority bonus must be included in the minimum contractual wage if the text does not exclude it. In other words, the trend is towards inclusion.

Since this case, the French Labour Code has clarified the rule for the SMIC (Art. L. 3231-3), but collective agreements remain diverse. Some expressly exclude certain bonuses (e.g., 13th-month bonus) from the calculation of the minimum. You must therefore always refer to the applicable text. The 1971 judgment remains a reference for interpreting the silence of an agreement: in case of doubt, the element of remuneration is included.

Frequently asked questions

What is a tantième? It is a commission proportional to the turnover generated by the employee, often used in retail.

Can my employer pay me only by commission with no basic salary? No, you are entitled to a guaranteed minimum contractual wage. If commissions are insufficient, the employer must make up the difference.

Can I claim back pay if my basic salary was below the minimum? Yes, within the limit of 3 years back (limitation period). Gather your payslips and send a registered letter to your employer.

What if my employer refuses to pay the supplement? Take the case to the industrial tribunal. You can also contact a lawyer specialised in employment law.

Does this rule also apply to apprentices? Yes, the minimum contractual wage applies, but specific provisions exist for apprentices (reduced salary depending on age and year of contract).

Are you 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 →