Social right. The part-time employment contract is a legal tool that is readily used, in that it allows the employer to adapt the number of employees at work to known fluctuations in activity over a given time. Two means can be used to do this with this type of contract: the modification, on condition of respecting a notice period, of the distribution of hours worked over a certain period and the use of additional hours, to increased remuneration but which, unlike overtime, never gives rise to the right to compensatory rest.
However, recourse to such additional hours is confined within a double time limit, sanctioned by the requalification of the part-time contract into a full-time contract when this limit is exceeded.
On the one hand, in application of article L. 3123-28 of the labor code, their volume may not exceed 10% of the weekly or monthly working time stipulated in the contract. A collective agreement may provide for a part-time arrangement, the hours of which (weekly or monthly) vary over a period greater than the week and at most equal to the year. This part-time work conventionally arranged over all or part of the year must also fall within the framework of the single working time arrangement as organized by law.
Second limit, the achievement of additional hours cannot have the effect, according to the formula of the article L. 3123-9 of the labor code, “To increase the duration of the work carried out to the level of the legal working time or to the duration fixed by agreement”.
However, this article does not specify the reference period – the week, the month or the year – which must be used for the calculation of this second ceiling. The uncertainty resulting from this lack of precision has just been lifted by a judgment of September 15, 2021 of the social chamber of the Court of Cassation, which considered that it was appropriate to refer – logically in view of the general wording texts on the subject – to the weekly working time.
This clarification is not without consequence. In the case in question, a security guard was working fifty hours per month, as of November 2014, and had completed 36.75 hours of work during the first week of February 2015. The contract having been terminated in November 2016, the employee applied to the industrial tribunal in order to obtain, from February 2015, the application of the sanction of requalification of his part-time employment contract into a full-time contract.
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