23/02/2011 - 17:54
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23/02/2011 - 17:54 Social
The calculation of the minimum wage should not include remuneration for time to pause Carrefour sentenced 23/02/2011 - 17:54
Social By four SHUT , ts dated 15 February 2011, the Criminal Chamber of the Supreme Court's jurisprudence on the alignment of the chamber on the social exclusion of breaks in the basis for calculating the minimum wage.
On 13 July 2010, the Social Chamber established the principle that, combined application of Articles L. 3121-1, L. 3121-2 and D. 3231-6 of the Labour Code, paying premiums conventional rest breaks should not be taken into consideration in calculating the minimum wage (Cass. soc., 13 July. 2010, No. 09-42890, 09-42891 and 09-42892: Jurisdata No. 2010-011691; JCP S 2010, 1536, note J.-Ph. Tricoit. - V. also Cass. Soc., November 9, 2010, No. 09-65315 and No. 09-65316: Jurisdata 2010-020685).
Under Article L. 3121-33 Labour Code, the worker is entitled to a minimum break of twenty minutes when daily working time exceeds six hours. Employers involved in this case were paid a monthly salary supplement to employees and included it in the calculation of the base of the SMIC under the collective agreement for retail and wholesale food applicable to character which requires supermarkets and hypermarkets to pay the break times at the rate of and a package of 5% of salary. The question was whether the lump sum should be regarded as remuneration for time actually worked and therefore included in the compensation elements for the calculation of the minimum wage, or whether it was purely damages. In
for the integration of compensation in the calculation basis of the minimum wage, employers relied in particular that this award was Port & # 233; e on the payroll, and paid to all employees, including employees absent on leave or permanently and permanent. Therefore, these pause should be regarded as additional salary, included as such in the base calculation of the minimum wage; Moreover, it does "not compensate for the constraints and difficulties imposed on particular employees, such as unhealthy ;, danger or cold "and therefore had no indemnity.
The Criminal Division does not follow the arguments and agrees to the principle of the social room. The actual working time is "time during which the employee is at the disposal of the employer and complies with its directives without being able to attend personal affairs ";" the employer may not include in the calculation of wages, to bring them at the minimum wage, compensation & # sp 233; cific, under an agreement or a collective agreement or an employment contract, which may be the time used for breaks, if they re ; lay not with this definition. " In this case, employees are not available to the employer during breaks, it followed that "the premium paying them, not recognized as actual working time, was excluded from the wage front & # 234; be compared to the minimum wage. " Therefore, wages paid, excluding the premium, were actually lower than the S
MIC, and companies must & # 234; be sentenced to pay damages and a fifth-class under Section A. 3233-1 of the Labour Code.
Source:
Cass. Crim., Feb. 15. 2011, No. 10-87019, FS-P + B + I, Synd. CFDT and CGT trade Rhone v. Carrefour hypermarkets Sté: Jurisdata No. 2011-0016968
Cass. Crim., Feb. 15. 2011, No. 10-83988, P + B + I, MJ c / Company Daguia: Jurisdata No. 2011-001701
Cass. Crim., Feb. 15. 2011, No. 10-87185, FS-D Synd. CFDT and CGT trade Rhone v. Carrefour hypermarkets Sté: Jurisdata No. 2011-001755
Cass. Crim., Feb. 15. 2011, No. 09-83741, FS-D, MB and a. c / Company Guyenne et Gascogne and a. : Jurisdata No. 2011-001754
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