Chronic. From the years 2000, a conflict is born between an individual employment contract and collective agreement. These two stars were edited together as it was, during the ” thirty glorious years “, a negotiation of the acquisition of new ” benefits “. But they clashed as soon as it has been to negotiate agreements, “giving-giving” – to the occasion, for example, of agreements, competitiveness, employment which, in the name of the internal flexibility rather than external, contractual benefits could be lost.
Accompanying a more general trend of individualization, the case-law had, since 1987, of the individual contract a dungeon impregnable in the name of the intangibility of the contract. But, from the law of 20 August 2008, which strengthened the legitimacy of the players union, the case law that followed have wanted to make the collective agreement, the standard of social regulation.
The business agreement must impose on the employee ? Can it refuse the application ? If yes, can the employer dismiss him ? What terms and conditions, knowing that, if the starting conditions are favourable, they encourage the best from ?
Two rights of constitutional value
Regarding this confrontation between two rights of constitutional value (the right to employment and freedom of enterprise), the constitutional Council ruled, on October 20, 2017, on the old article L. 2254-2 from the law of 8 August 2016 relating to the development agreements of employment, which allowed for changes of hours of work and compensation (for example, 39 hours paid 35), impacting elements of the contract.
In the name of his respect, article L. 2254-2 did not preclude a refusal of the employee, but at a cost deterrent. Indeed, in the absence of bend the intangible contract, it tried to bend the employee refusing the application of the agreement of the majority, the alternative being dismissal….