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One of the Macron ordinances issued in 2017 reformed the "hardship" system at work. In accordance with this ordinance, decrees no. 2017-1768 & 1769 of December 27, 2017, modified the criteria for the obligation to establish a collective agreement or, failing that, an action plan to prevent the effects of exposure to professional risk factors considered under the hardshipsystem. These new criteria came into effect on January 1st 2019.
We would like to provide an update on this topic to help you determine whether or not you are subject to this obligation.
Hardship agreements: New criteria for compliance
As of January 1, 2019, companies and public establishments with at least 50 employees (or belonging to a group with at least 50 employees) that meet one of the following conditions are required to establish an agreement or an action plan:
- at least 25% of employees exposed to at least one of the 6 professional risk factors eligible under the professional prevention account (C2P): hyperbaric environment activities, extreme temperatures, noise, night work, alternating shift work, repetitive work
- or an accident/illness rate greater than 0.25.
The accident/illness rate is the ratio, over the 3 most recent known years, between the number of workplace accidents and occupational diseases (AT/MP) attributed to the employer, excluding commuting accidents, and the company's headcount as calculated for the application of the AT/MP rate. The index is therefore obtained by adding up all AT/MP attributed over 3 years (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 required to conclude a collective agreement or an action plan, provided they are already covered by an extended branch agreement that includes the mandatory topics. To help you determine your status:
The Retirement and Occupational Health Insurance Fund (CARSAT) or the Agricultural Social Mutual Fund (MSA) is now required to inform employers of their obligation to initiate negotiations for a collective agreement or, in the event of a disagreement, to establish an action plan to prevent the effects of exposure to occupational risk factors present within the company.
Implementing the hardship agreement or action plan
Affected companies must conclude an agreement or develop an action plan. Any collective agreement, like any action plan:
- cannot exceed a duration of 3 years;
- must include preventive measures covering all 10 occupational risk factors, as well as procedures for monitoring their effective implementation;
- must address mandatory topics.
A company may only opt to establish an action plan if it has been unable to conclude a collective agreement with employee representatives.
The agreement or, where applicable, the record of disagreement and the action plan must be filed with the DIRECCTE, which will inform the Retirement and Occupational Health Insurance Fund (CARSAT) or the Agricultural Social Mutual Fund (MSA).
As of January 1, 2019, the CARSAT or the MSA must report to the DIRECCTE any companies not covered by a collective agreement or an action plan.
In the event of a failure to meet the obligation to establish an agreement or action plan, the employer is subject to a formal notice and a penalty due for each month during which the company fails to comply with its obligations. The penalty rate is notified by the DIRECCTE within one month following the expiration of the formal notice. This rate is capped at 1% of the remuneration or earnings paid to the workers concerned.
Content of the hardship agreement
The collective agreement or action plan must include preventive measures. These must cover all 10 occupational risk factors, as well as procedures for monitoring their effective implementation.
As a reminder, the 10 risk factors to be taken into account are:
- those covered by the C2P: Activities performed in hyperbaric environments, extreme temperatures, noise, night work, shift work, and repetitive work
- and the following four risk factors: mechanical vibrations, hazardous chemical agents, strenuous postures, and manual handling of loads.
The agreement or action plan must include measures relating to at least 2 of the following topics:
- reducing multiple exposures beyond hardship thresholds;
- adapting and modifying workstations;
- 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;
- managing the end of careers;
- retaining employees exposed to occupational risk factors in the workforce.
For each theme chosen from the 2nd group, the agreement or action plan must specify the measures allowing holders of a professional prevention account (C2P) to allocate the points credited to it toward measures for reducing working hours or for professional training.
Each theme included in the agreement or action plan must be accompanied by quantified objectives. Achievement is measured using 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, or, failing that, to the employee representatives if a CSE has not yet been set up.
In conclusion, to determine whether, as of January 1st , 2019, your company will be subject to the obligation to negotiate a collective agreement or establish an action plan for the prevention of arduous work, we advise you to follow these steps:
- obtain the company's headcount;
- calculate the proportion of employees exposed to the risk factors covered by the C2P;
- calculate the accident rate;
- verify whether or not the company belongs to a group;
- verify the existence of an extended industry-wide agreement for the prevention of arduous work.