But the Court of cassation is not his account

Decidedly, the Court of cassation is not administrative simplifications enthusiast! How are, these companies who recruit a person in CSD to replace successively or simultaneously Pierre, Paul and Jacques gone on vacation They will have to renounce this many convenient habit following two judgments of June 28.

The first case happens in Auchan: a self-service employee was hired for nineteen days to successively replace several employees on paid leave. The contract mentions expressly the name and qualifications of each employee and the Court of appeal of Aix-en-Provence, noting that the spirit of the Act is not denatured, valid this practice.

Doing an interpretation to the letter of article l. 122-1-1 (1) of the Labour Code, the Court of cassation will censor Provençal judges decision: "whereas it follows from this text that the fixed-term employment contract may be concluded only for the replacement of a single employee absence;"

(Cass. Soc., June 28, 2006, no. 04 - 40 455). It concludes that the contract in question is in fact a contract indefinite duration.

Excessive formalism

The formalism of the Court of cassation appears here as excessive and cannot be explained by the fear of abuse but which No doubt she afraid that allowing groups it opens the way too fuzzy contracts which masks the illegal use of the BOD...

More understandable is the position taken in the case of Cora. In a year, a saleswoman was hired on three occasions to replace several employees absent because of vacation pay on each contract. Even if the name and title of each of the predecessor to the contract, it follows an inevitable confusion and, as the individual has a different characterization of the replaced people. In fact, Cora society does not entrusted directly replaced employees functions: easing the work of some standing, it has affected the alternate position constituted units of work that it has temporarily withdrawn.

This organization does not shock the Court of appeal of Limoges. She recalled that the employer replaced is not required to assign the alternate to the position of the replaced. The said replacement "cascading" is completely tolerated (Cass. Soc.,. 22 nov 1995, 15 oct 2002). But the Court of cassation is not his account. There, she clings to a literal interpretation of the text and recalls that it must be a different contract by employee replaced (Cass. Soc., June 28, 2006, no. 04 - 43 053).

The Organization adopted by Cora society is thus theoretically possible, but the Court of cassation makes it so heavy, from an administrative standpoint, that it becomes unworkable. Should, indeed, to meet the requirements of the case-law, conclude as many part-time CSD as there are people to replace, indicating, in each contract, working hours that the alternate must devote to this replacement here. Of course, particularly in a case like that of Cora, where the employee was not direct substitute each replaced holder, used it was easy to divide the overall time a number equal to the number of people replaced, because ultimately the employee was the same work from one end to another day. Nevertheless, one cannot help thinking that the process resulting from the analysis of the Court of cassation fully deserves the qualifier "of gas plant.

For what, this is currently the State of the authorities and the High Court, after having adopted this position in two cases it has declared to be published, will not return to its interpretation as a result of an amendment to the Act. It would suffice to little, it would be even two words. The Labour Code states: replacement of "or more" employees to talking more.

Concerned will great causes and major reforms, Parliament take the time to dwell on the detour of broader legislation on this point in detail Hopefully, because if we cannot ensure that the right to work is complex in its content, can at least simplify the questions of pure form.