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One of the Macron ordinances published in 2017 had reformed the "arduousness" scheme at work. Pursuant to this ordinance, Decrees no. 2017-1768 & 1769 of December 27, 2017 had modified the criteria for being subject to the obligation to draw up a collective agreement or, failing that, an action plan to prevent the effects of exposure to the occupational risk factors considered under the heading of "penibility". These new criteria come into force on January1, 2019.
We'd like to give you an update on the subject, to find out whether or not you'll be affected by this obligation.
Agreements on arduous work: New criteria for liability
As of January 1, 2019, companies and public establishments employing at least 50 employees (or belonging to a group employing at least 50 employees) and meeting one or other of the following conditions are required to draw up an agreement or action plan:
- at least 25% of employees exposed to at least one of the 6 occupational risk factors eligible under the C2P scheme: activities in hyperbaric environments, extreme temperatures, noise, night work, alternating shifts, repetitive work, etc.
- or loss ratio greater than 0.25.
The claims index is equal to the ratio, for the last 3 known years, between the number of accidents at work and occupational illnesses(excluding commuting accidents) attributed to the employer, and the number of employees in the company, as calculated for the purposes of calculating occupational injury and illness rates. The index is therefore obtained by adding together all the occupational accidents and diseases attributed to the company over a 3-year period (excluding commuting accidents), and dividing by the number of employees.
Reminder
Companies with fewer than 300 employees (or belonging to a group with fewer than 300 employees) are not obliged to conclude a collective agreement or action plan, unless they are already covered by an extended branch agreement including the mandatory themes. To help you situate yourself:
The Caisse d'assurance retraite et de la santé au travail (CARSAT) or the Caisse de mutualité sociale agricole (MSA) is now required to inform the employer of its obligation to negotiate a collective agreement and, in the event of disagreement, to draw up an action plan to prevent the effects of exposure to occupational risk factors present in the company.
Implementing the agreement on arduous working conditions or the action plan
The companies concerned must conclude an agreement or draw up an action plan. All collective agreements and action plans :
- may not exceed 3 years;
- must include preventive measures covering all 10 occupational risk factors, as well as procedures for monitoring their effective implementation;
- must cover mandatory themes.
A company can only opt to draw up an action plan if it has not been able to reach a collective agreement with employee representatives.
The agreement or, where applicable, the minutes of disagreement and the action plan must be filed with the DIRECCTE, which will inform the Caisse d'assurance retraite et de la santé au travail (CARSAT) or the Caisse de mutualité sociale agricole (MSA).
CARSAT or MSA will have to notify DIRECCTE of companies not covered by a collective agreement or action plan, from January 1, 2019.
In the event of failure to meet its obligation to draw up an agreement or action plan, the employer is liable to a formal notice and a penalty due for each month during which the company fails to meet its obligations. The rate of the penalty is notified by the DIRECCTE within one month of the expiry of the formal notice. This rate is set at a maximum of 1% of the remuneration or earnings paid to the workers concerned.
Contents of the agreement
The collective agreement or action plan must include preventive measures. These must cover all 10 occupational risk factors, as well as the procedures for monitoring their effective implementation.
As a reminder, the 10 risk factors to be taken into account are :
- those covered by C2P: Activities carried out in hyperbaric environments, Extreme temperatures, Noise, Night work, Work in alternating shifts, Repetitive work
- and the following four risk factors: Mechanical vibrations, Dangerous chemical agents, Awkward postures and Manual handling of loads.
The agreement or action plan must include measures relating to at least 2 of the following themes:
- Reducing multiple exposures above the risk thresholds;
- adapting and adapting the workstation ;
- reducing exposure to occupational risk factors,
and, in addition, at least 2 of the following themes:
- improving working conditions, particularly in terms of organization;
- developing skills and qualifications ;
- end-of-career planning ;
- retaining employees exposed to occupational risk factors.
For each topic chosen from the 2nd group, the agreement or action plan must specify the measures enabling holders of a professional prevention account (C2P) to allocate the points registered in it to measures to reduce working hours or promote vocational training.
Each theme included in the agreement or action plan must be accompanied by quantified objectives. Achievement is measured by means of indicators. These indicators are communicated, at least annually, to the members of the CSE (social and economic committee) or to the members of the CHSCT (health, safety and working conditions committee), or, failing that, to the employee delegates if a CSE has not yet been set up.
In conclusion, to determine whether, as of January1, 2019, your company will be subject to the obligation to negotiate a collective agreement or draw up an action plan for the prevention of penibility, we advise you to follow the steps below:
- obtain the company's workforce ;
- calculate the proportion of employees exposed to the risk factors covered by the C2P ;
- calculate the loss ratio ;
- check whether or not the company belongs to a group;
- verify the existence of an industry-wide agreement on the prevention of arduous working conditions.