Key Benefits:
(ASSOCIATION GROUPEMENT OF AGRIPLUS EMPLOYERS)
The Constitutional Council has been Seized on 11 September 2015 by the Council of State (Decision No 389293), under the conditions laid down in Article 61-1 of the Constitution, a priority question of constitutionality for the Association of Employers AGRIPLUS, by the CPC Celice, Blancpain, Soltner, Texidor, counsel for the Conseil d' Etat and the Court of Cassation, on compliance with the Rights and freedoms guaranteed by the Constitution " Articles L. 1111-2, L. 5212-2 and L. 5212-14, in its wording from Act No. 2008-1249 of 1 December 2008, as well as the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006903682&dateTexte= &categorieLink = cid"> second paragraph of article L. 5212-3 of the Labour Code ", registered in the General Secretariat of the Constitutional Council under the Number 2015-497 QPC.
The Constitutional Council,
Given the Constitution;
Seen Order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen job code ;
SeenOrder No. 2007-329 of March 12, 2007 relative to job code ;
Seen Law No. 2008-67 of 21 January 2008 ratifyingOrder No. 2007-329 of 12 March 2007 relative to the labor code ;
Seen Act No. 2008-789 of August 20, 2008 Renovation of social democracy and Reform of working time;
Given the Act No. 2008-1249 of 1 December 2008 generalizing the income of active solidarity and reforming integration policies;
Seen the Regulation of 4 February 2010 on the procedure followed before the Constitutional Council on priority constitutionality issues;
In view of the observations made by the Prime Minister, registered on 6 October 2015;
Seen Submissions filed for the applicant association by CPC Celice, Blancpain, Soltner, Texidor, recorded on October 20, 2015;
Seen the exhibits filed and attached to the file;
Me Frédéric Blancpain for the applicant association, and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at The public hearing on November 12, 2015;
The rapporteur was heard;
1. Considering that according to the terms of Article L. 1111-2 of the Labour Code, in its wording from the Href=" /viewTexte.do?cidTexte=JORFTEXT000019347122 &categorieLink = cid"> August 20, 2008 law :
"1 ° Employees with an indeterminate fixed-term employment contract and homeworkers are fully taken into account in the company's workforce;
" 2 ° Employees with a contract of employment to Employees who hold an intermittent contract of employment, employees made available to the undertaking by an outside firm who are present at the premises of the user undertaking and have worked there since at least One year as well as temporary employees are taken into account in the The company due in proportion to their presence in the preceding twelve months. However, employees with a fixed-term employment contract and employees made available by an outside firm, including temporary employees, are excluded from the count when they replace an employee Absent or whose contract of employment is suspended, in particular by reason of maternity leave, adoption leave or parental leave of education;
" 3 ° Part-time employees, irrespective of the nature of their employment contract, shall be taken Account by dividing the total sum of the hours entered in their contracts Work by the legal duration or the conventional duration of the work " ;
2. Whereas, according to Article L. 5212-2 of the same Code, in its drafting of theorder of 12 March 2007 referred to above : Every employer shall employ, in the proportion of 6 % of the total number of its employees, full-time or part-time, disabled, war-mutilated and assimilated workers referred to in Article L. 5212-13 ;
3. Whereas, in accordance with the second paragraph of Article L. 5212-3 of the Code, in its wording following the order of 12 March 2007: Temporary workers are subject to the employment obligation only for their permanent employees." ;
4. Considering that according to the terms of article L. 5212-14 of the Labour Code, in its drafting of the Href=" /viewTexte.do?cidTexte=JORFTEXT000019860428 &categorieLink = cid"> December 1, 2008 Act : " For the calculation of the number of beneficiaries of the employment obligation, each person shall be taken into account as a proportion of his time of presence in the undertaking during the calendar year, irrespective of the nature or duration of his or her contract. Job, within the limit of a drive and under the following conditions:
" -employees whose working hours are more than or equal to half of the legal or conventional duration are counted in the limit of a unit as if they had been employed on a full-time basis;
" -employees whose working hours are less than half the legal or conventional duration shall be counted under conditions laid down by decree without having to take into account a half-unit " ;
5. Whereas the applicant association maintains that the provisions of the second paragraph of Article L. 5212-3 of the Work disregards the principle of equality before the law when they establish an unjustified difference in treatment between temporary work undertakings and employers' groups with regard to the taking into account of employees not Permanent for the employment obligation of the Workers with disabilities; and that it also supports the combined provisions of articles L. 1111-2, L. 5212-2 and L. 5212-14 of the Labour Code disregard the principle of equality where employees of a group of employers made available to a user undertaking are not taken into account in the numerator of the ratio for calculating the number Beneficiaries of the employment obligation of disabled workers, whereas they are taken into account in the denominator of this ratio;
6. Considering that the priority issue of constitutionality relates to second paragraph of Article L. 5212-3 of the Job and the words " Due to the proportion of his time in the business during the calendar year " In the first paragraph of Article L. 5212-14 of the Labour Code ;
7. Considering that, according to article 6 of the Declaration of the Rights of Man and the Citizen of 1789, the Act " Must be the same for all, either protecting or punishing " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the legislation that establishes it;
8. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; in particular, in order to ensure respect for the principle of equality, the legislator must base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, lead to Breach of equality before public office;
On the second of Article L. 5212-3 of the Job :
9. Taking the view that the applicant association maintains that the impugned provisions disregard the principle of equality before the law, since, for the employment obligation of workers with disabilities, they exclude, for the purposes of Temporary work undertakings, the taking into account of employees made available to user undertakings, whereas they provide for them for groups of employers; that employers' groups and temporary work undertakings, Who are engaged in the same labour supply activity Companies are placed in the same situation and no grounds of general interest justify a different treatment;
10. WhereasArticle L. 5212-2 of the Labour Code requires employers to employ disabled workers in the Proportion of 6 % of their workforce; that under the combined provisions of the articles L. 1111-2 and L. 5212-2 of the Labour Code, all employees of a company are taken into account in assessing whether it is subject to the employment obligation of disabled workers; that the second paragraph of Article L. 5212-3 of that Code provides, by Derogation from this rule, that temporary work undertakings are subject to the employment obligation of disabled workers only for their permanent employees; Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006903682&dateTexte= &categorieLink = cid"> Neither Article L. 5212-3 of the Labour nor any other provision provides for an identical derogation for the benefit of employers' groups;
11. Considering, however, that if groups of employers are similar to temporary work enterprises in that they provide labour to user companies, they are distinguished on the one hand by legal links Between the group and the employers who adhere to it and, on the other hand, the division of responsibilities between the group and its members, which are jointly and severally liable for the debts of the group to its employees; that the groups Employers are, therefore, in a different situation than That of temporary work undertakings; that, therefore, the legislature could, for the purpose of determining the employment obligation of workers with disabilities, retain methods of accounting for employees separately employed in groups Employers and temporary work undertakings without disregarding the principle of equality; that the complaint alleging breach of the principle of equality before the law must be rejected; that the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006903682&dateTexte= &categorieLink = cid"> provisions of the second paragraph of Article L. 5212-3 of the Labour Code, which ignore any other right or freedom Constitution guarantees, must be declared in conformity with the Constitution;
On the words " Due to the proportion of his time in the business during the calendar year " In the first paragraph of Article L. 5212-14 of the Labour Code :
12. Considering that, according to the applicant association, the contested provisions establish to the detriment of employers' groups an unjustified difference in treatment, in disregard of the principle of equality before public office, as soon as Employees of a group made available to a user undertaking shall be taken into account in determining the basis of liability for the employment obligation of workers with disabilities, when they are not taken into account for Assess whether the group of employers meets the obligation Employment of disabled workers;
13. Considering that under the combined provisions of the articles L. 1111-2 and L. 5212-2 of the Labour Code all employees of a group of employers, whether permanent or made available to a user undertaking, are taken into account in assessing whether the group of employers is subject to The employment obligation of disabled workers;
14. Taking the view that the contested provisions cannot, without creating a serious breach of equality before public office, prevent the employees of a group of employers made available to a user undertaking Be taken into account in the number of beneficiaries of the employment obligation of disabled workers, where they are counted in the basis of liability for the employment of disabled workers; that, under this Reservation, the words " Due to the proportion of his working time in the business during the calendar year " Appearing in the first paragraph of Article L. 5212-14 of the Labour Code, which do not disregard the principle of equality before the Public office or any other right or freedom that the Constitution guarantees, must be declared in conformity with the Constitution,
Decides:
second paragraph of Article L. 5212-3 of the Labour Code is in conformity with the Constitution.
Subject to recital 14, the words " Due to the proportion of his time in the business during the calendar year " In the first paragraph of Article L. 5212-4 of the Labour Code are in conformity with the Constitution.
This decision will be published in the Official Journal of the French Republic and notified under the conditions set out in article 23-11 of the order of November 7, 1958.
Delivered by the Constitutional Council in its Mr Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Renaud DENOIX de SAINT MARC, Jean-Jacques HYEST, Lionel JOSPIN and Nicole MAESTRACCI.
Public service November 20, 2015.
