Could an employer adapt through a collective agreement the rules for calculating the compensation of RTT days by excluding from the calculation base the variable remuneration received by employees?īy analogy with the rules applicable to calculating the paid vacation indemnity, this seems possible for the variable remuneration determined annually, since including this annual remuneration in the RTT base would be tantamount to the employer paying the variable bonuses twice.In this case, the base for calculating the compensation of the RTT days should have included the “gross sales bonuses” since they were closely linked to the employee’s activity and performance. Unless provided otherwise in collective bargaining agreements, the compensation of RTT days must include the fixed part and the variable part of the remuneration. It specified that “unless specifically provided (…) in the collective labor agreement on the conditions for maintaining the salary in case of a reduction in working time, the employee cannot suffer any loss of salary for taking days compensating the reduction in working time”. The French Supreme Court also granted the employees’ claim but pursuant to another reasoning. The Court of Appeal rejected the Company’s arguments and decided to model the regime of RTT days on that of paid vacation days. Therefore, taking RTT days does not affect in any way the employee’s variable remuneration, since the activity which these RTT days compensate cannot be subject to variable remuneration. It also argued that RTT days corresponded to hours worked, between 35 and 39 hours, for which no variable remuneration had been provided. As a result, the Company considered that although employers could decide to keep the previous remuneration outside any obligation, they could freely choose to maintain only the fixed part of the salary, to the exclusion of the variable part. The employer stated that the Aubry II law established 35 hours as the legal working time without accompanying this reduction in working time with an obligation to maintain the salary. Only the fixed part was included in the base for calculating the compensatory RTT days indemnity.
In this case, seven employees contested their company’s rules on the compensation of RTT days which did not take into account the variable part of their remuneration. In a decision published on March 28, 2018, the Social Chamber of the French Supreme Court clarified the rules on the compensation of RTT days, in the absence of specific provisions in a collective agreement (Cass.
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