The penalties are known by many employees and employers. But it turns out that in many cases the penalties are combined with duty.
Definition of penalties
The penalty period is defined as:
- A period during which the employee without being at the disposal of the employer to be held at home or near their workplace in order to intervene in local society;
- Penalty time is not actual working time;
- Intervention is considered effective working time and the journey “back and forth” of the employee to get to the place where his presence is required.
Introduction of penalties
The penalties are established within the company by:
- Agreements or sectoral collective agreements extended;
- Enterprise agreements or establishment;
- Unilaterally, after informing and consulting the works council or, in the absence of a works council, staff representatives, and after informing the inspector.
The agreement should include:
- Compensation, whether financial or in the form of rest;
- Organization mode of the penalty;
- Compliance with the maximum duration of working hours and the respect of rest periods;
- The notice period.
Is the employee’s refusal possible?
- If the setting is place comes from a collective agreement or a convention, the refusal may result in dismissal;
- If the penalty is implemented by the employer (unilaterally), the employer can not impose and the refusal of the employee shall not cause any penalty.
Can an employee ask to do the penalty?
If the establishment from a collective agreement or an agreement, the mode of organization is then set: the application by the employee is then possible.
Failing agreement, it is the employer who is supposed to fix the penalties.
An employee under penalty must benefit from:
- Financial compensation and/or form of rest;
- If the remuneration is fixed at the beginning, the financial compensation is added to the sum.
- It is considered effective work, so taken into account for the increase in overtime;
- Time round trip is considered as part of the intervention.
Penalty and rest
Except where intervention occurs, penalty periods are counted minimum periods of rest:
- Daily (11h);
- Weekly (35h).
Specifically, an employee who is on call on weekends, without having intervention will be considered to have received its minimum weekly rest.
Penalty in the workplace?
According to the Labor Code, the penalties shall be conducted at the employee’s home or any other place, provided it is near the premises of the company in order to achieve a rapid intervention.
Hours worked on the workplace are actually realized in the time frame of permanence, it is then considered as time worked and must be paid as such.
Special Case: the housing function
If the employee is required to an obligation of presence within its housing function and do not perform any work for the employer, it is a period of penalty.
But if the employee must also be some work done, even minimal, these periods are the actual working time.
For which categories of employees?
The penalties are for non-executive employees or managers.
Accidents during the penalty?
If the accident happens during the procedure, it is an accident. If it occurs outside intervention, it is the employee to prove the bond between the accident and work.
If the accident occurs in a place imposed by the employer, the accident is treated as taking place in the premises of the company.