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Order Of December 23, 2011 On The Extension Of The National Collective Agreement Of The Branch For Help, Support, Care And In-Home Services And Amendments To The Collective Agreement (No. 2941)

Original Language Title: Arrêté du 23 décembre 2011 portant extension de la convention collective nationale de la branche de l'aide, de l'accompagnement, des soins et des services à domicile et d'avenants à ladite convention collective (n° 2941)

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JORF n ° 0301 of December 29, 2011 page 22630
text number 89



Order of 23 December 2011 extending the national collective agreement of the branch of l 'aide, de l 'accompaniment, care and services at home and d 'endorsements of the said convention Collective (n ° 2941)

NOR: ETST1135420A ELI: Not available


The Minister of Labour, Employment and Health,
Seen job code, including its article L. 2261-15;
Given the national collective agreement of the aid, support, care and Home services of 21 May 2010;
In the light of the Amendment No 2011/1 of 24 March 2011 to the National Collective Agreement of the Aid, Support, Care and Home Services Branch;
In the light of the Amendment No 2011/2 of 12 July 2011 to the National Collective Agreement of the Aid Branch, of Support, care and home care;
In view of the request for extension by the signatory organisations;
In view of the opinions published in the Official Journal of 13 October 2011, 15 November 2011 and 1 December 2011;
Seen Advice gathered during the investigation;
Given the reasoned opinions of the National Commission for Collective Bargaining (Sub-Committee on Conventions and Agreements), delivered in meetings of 8 November 2011 and 9 December 2011, concerning the Convention Of the aid, support, care and services branch to the Domicile of 21 May 2010, and in particular the oppositions made by the UPA, on the grounds of the risk of overlap with the fields of application of other collective agreements to the extent that the scope of the collective agreement contains an enumeration NAF codes preceded by the adverb " In particular " ; by the CFTC, on the one hand, on the one hand, that the choice of the revision procedure to the detriment of the denunciation procedure would be penalising for the employees, on the other hand, that an agreement of 21 May 2010 on the contribution to social works and In the context of the collective agreement would create a disparity between the employees in that it is applicable to all employees except those belonging to the institutions of the ADMR federation and that an agreement of the 21 May 2010 on travel expenses and ADMR-specific expenses would reduce support Kilometre allowances for employees under this federation and, finally, that the ADMR groups will be able to continue to join the same foresight body, while three bodies are proposed for the whole branch; by The CGT, on the ground, first, that the collective agreement would not take into account the arduous nature of the trades concerned in so far as it would provide for derogations from the job code without real consideration Second, that the two agreements of 21 May 2010 would accentuate the disparities between employees; by the CGT-FO, on the ground that the text does not Would not correspond to the conventional unification desire desired by the social partners, that the mileage allowances would be 40 % less than the existing one, that the role and tasks of the CHSCT would be diminished, that the Night would not be properly framed and, finally, additional penalty payments Would be planned, which would make it difficult to work full-time;
Considering that the Minister responsible for labour, when extending a collective agreement or agreement, should ensure that any overlap is avoided Scope with extended collective agreements or agreements;
Considering, on the one hand, that the NAF codes have only an indicative value for determining the collective agreement applicable to a company (Cass. No. 98-42949) and that, on the other hand, the signatories have taken care to define precisely the activities covered by the collective agreement and have excluded undertakings which carry out the same activities but already apply in title Compulsory another comprehensive collective agreement or agreement; that there is no overlap with the fields of other extended collective agreements or agreements;
Considering, on the one hand, that night workers have a Quiesce counterparty of 5 % of the hours worked during the night range; Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006902532&dateTexte=29990101 &categorieLink = cid"> article L. 3122-39 of the Labour Code provides that night workers benefit from work-related counterparties At night but does not provide any legal minimum; on the other hand, that the Labour Code does not provide for any limitation in respect of penalty time; article L. 3132-12 of the Labour Code provides that certain establishments, whose categories are determined by decree In the Council of State, may derogate from the rule of Sunday rest giving a weekly rest period and thatR. 3132-5 Of the job code That, for all of these reasons, the argument that the text does not take into account the hard work of the trades and provides for derogations from the job code without real financial compensation is not admissible in legality;
Considering that the argument that night work orders do not Would not be properly framed can relate either to casual night work or to Structural night work; that, if it is the structural night work that is covered, the collective agreement provides that the employer makes available to the employee an isolated and healthy place, that the cost of transporting the employee's home to the employee 's The employee's home is taken care of by the employer, either through the payment of kilometric allowances, or by the making available of a vehicle, or by the reimbursement of public transport, that the employee has a break from Twenty minutes after six hours of actual working time, that in addition, Article 4 of the title VIII on professional equality between women and men provides that the structures of the branch undertake to maintain and develop by training the conditions guaranteeing respect for parity in the performance of duties Responsibilities; thus, the text adopts the four clauses laid downArticle L. 3122-40 of the Labour ; that If it is the occasional night work that is targeted, job code does not provide any special framework; therefore, the reason for opposition does not include the legality of the text;
Considering that the arguments relating to the two agreements of 21 May 2010 are inoperative in so far as those texts are not concerned by the present by extension;
Whereas the other grounds of opposition do not concern the Legality of the collective agreement;
Given the reasoned opinions of the National Commission for Collective Bargaining (Sub-Committee on Conventions and Agreements), delivered in meetings of 9 and 21 December 2011, concerning Amendments Nos 2011/1 and 2011/2, in particular the objections made by the CFTC, on the grounds that Amendment No 2011/2 on collective health guarantees would provide for the exclusivity of AG2R for the membership of the structures under the ADMR, which would call into question the balance of the collective agreement and create inequalities of Treatment between employees, that this amendment would provide for significant differences between employees Financial contributions of employees, which would constitute discrimination; by the CGT, on the ground that the provisions of the collective agreement would be less favourable to employees; and by the CGT-FO, on the ground that such endorsements would Deprive employees of their acquired benefits;
Considering that the possibility offered byArticle L. 912-1 of the Code of Social security to designate " One or more organizations " To manage a foresight scheme does not create a difference in treatment between employer structures according to whether they are affiliated with any of these designated bodies; that the contributions collected are in fact paid on a fund Single, on which all benefits are levied, thus ensuring the equality of the system;
Considering that the other grounds of opposition do not concern the legality of the endorsements;
Whereas the Convention and the endorsements have Have been concluded by the social partners under regular conditions and Terms are, subject to certain provisions that must be excluded from the extension, in accordance with the law and regulations,
Stop:

Item 1 provisions of Article L. 2261-3 of the Work.
Article 5 of Title I is extended subject to the application of the provisions of Article L. 2261-10 of the Code Job.
The second sentence of Article 5 of Title I shall be extended, provided that the duration of the maintenance in force of the collective agreement is determined, in accordance with article L. 2261-10 of the Labour Code, as interpreted by the Court of Cassation (Cass. No. 89-45314 89-45431).
The third paragraph of Article 5 of Title I is extended subject to the application of the combined provisions of Sections D. 2231-3 and D. 2231-8 of the Labour Code.
In Title II, the words: " ETP " Are extended subject to the application of the provisions of Articles L. 1111-2 and L. 1111-3 of the Labour Code.
Words: " Within the contribution rate dedicated to lifelong learning under Article VI.25 " Article 3 of Title II shall be excluded from the extension as being contrary to the provisions of Articles L. 6331-1, R. 6332-43 and R. 6332-44 of the Labour Code.
The second sentence of the first subparagraph of Article 24.2 of Title II shall be excluded from the extension as being contrary to L. 2143-6 et L. 2143-11 du code du travail.
The first paragraph of Article 29.1 of Title II is extended subject to the application of provisions of article L. 4611-7 of the Labour Code.
The first paragraph of Article 29.2 of Title II is extended subject to reserve Application of provisions of article L. 4611-7 of the Labour Code.
The first paragraph of Article 32 of Title II is excluded from the extension As contravening the provisions of Article L. 2232-21 of the Labour Code.
The second indent of Article 33 of the Title II is extended subject to The application of the provisions of Article L. 2232-21 of the Labour Code.
The fourth indent of Article 33 of Title II Is excluded from the extension as contrary to the provisions of Articles L. 2232-21, L. 2231-2-22, L. 2232-27-1, L. 2232-28 and L. 2232-29 of the job code that does not Article
of Title II shall be excluded from the extension as being contrary to provisions of articles L. 2232-21 to L. 2232-29 of the Labour Code.
The last two paragraphs of Article 5 of the chapter II of Title III are excluded from the extension as being contrary to provisions of article L. 3121-10 of the Labour Code.
In Article 6 of Title III, the minimum wage grid The
sentence of the first paragraph of Article 30.1 of Title IV shall be extended under the provisions of Article 30.1 of Title IV. Reserve for application of provisions of article L. 1237-10 of the job code, returning to article L. 1234-1 of the Labour Code.
Section 14.3 of Chapter I of Title V is extended subject to the application of the Case-law of the Court of Cassation according to which the costs an employee justifies having For the purposes of his or her professional activity and in the interest of the employer shall be reimbursed to the employer without being charged against the remuneration payable to him, unless he has been contractually expected to do so. Will retain the charge against the payment of a lump sum payment in a lump sum and on the condition that the actual remuneration of the work remains at least equal to the Cass. Sc., 25 February 1998, No. 95-44.096).
Article 42 of Chapter 3 of Title V is excluded from the extension in that it does not include the three mandatory clauses provided for in article L. 3122-2 of the job code.
Section 43-2 of Chapter 3 of Title V is excluded from the extension in that it does not resume Not all three mandatory clauses in article L. 3122-2 of the Labour Code.
The sixth paragraph of Article 14 of Title VI is extended subject to The application of the provisions of Articles L. 6323-3 and R. 6323-1 of the Labour Code.
The third indent of the third Paragraph of Article 23 of Title VI is extended under Reserve for the application of the provisions of 4 ° II of Article R. 6332-36 of the Labour Code.
Article 25 of Title VI Is extended to include the words: " And the financing of the Paritarian Assistance Fund " In the first paragraph, words: ' Including 0.030 % dedicated to the financing of the Paritarianism Fund In the third indent of the third paragraph, the last indent of the fourth paragraph and the last indent of the fifth paragraph, and of the words: ' And the financing of the Paritarian Assistance Fund " To the sixth paragraph as contrary to the provisions of Articles L. 6331-1, R. 6332-43 and R. 6332-44 of the Job.
The words: " Subject to being under 26 years of age on the date of death of the insured parent " In Article 6.4 are excluded from the extension as being contrary to the provisions of Article L. 1132-1 of the
3 of Article 7.2 is excluded from the extension as being contrary to the provisions of Article L. 912-3 Social Security Code.
The The last paragraph of Article 10 is excluded from the extension as being contrary to the provisions of Article L. 912-1 of the Social security.
Article 28.2 is extended subject to the application of the provisions of Article L. 912-1 of the Code Social Security.
The The first paragraph of Article 28.3 is extended subject to the application of the provisions of L. 912-1 of the Social security.
Title VIII is extended subject to the application of the provisions of L. 2241-9 of the Job.
The last paragraph of Article 4 of Title VIII shall be extended subject to the application of the provisions of L. 6332-2 of the Work.
The first two paragraphs of Article 9 are excluded in that, by their generality, they are contrary to the general occupational health policy as it emerges from provisions of article R. 4623-1 of the labor code, which defines the mission of prevention of the doctor in the workplace, and To the effect that the increase in medical examinations has the effect of consuming the working time of the working doctor, which is detrimental to the exercise of his work in the workplace and his actions in the prevention of occupational risks of the Employees;
-the Amendment No 2011/1 of 24 March 2011 to the Convention National collective agreement referred to above;
-Amendment No. 2011/2 of 12 July 2011 to the aforementioned national collective agreement.
Article 28.1 is extended subject to the application of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006311299&dateTexte= &categorieLink = cid"> section 991 general tax code.

Article 2


Extending the effects and sanctions of the collective agreement And such endorsements shall take effect from the date of publication of this Order for the remainder of the term and the conditions laid down by the said collective agreement and such endorsements.

Article 3


The Director General of Work is responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.


Done on December 23, 2011.


For the Minister and by Delegation:

The general manager of the job,

J.-D. Combrexelle


Note. -The above-mentioned texts have been published in the Official Bulletin of the Ministry, collective agreements No. 2011/41, available at www.journal-officiel.gouv.fr/bocc.


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