Thursday, 20 January, 2022

The Council of State cancels two much criticized measures of the unemployment insurance reform


The highest administrative court considers that the rule for calculating the daily reference wage, from which the allowance is deducted, is discriminatory. That modifying the employer’s contribution comes up against a question of procedure. The Ministry of Labor refers to the corrections currently in consultation with the social partners.

The entry into force of the most criticized measures of the unemployment insurance reform has already been postponed twice.

After postponing it from September 1 to January 1, then to April 1, is the government going to have to put unemployment insurance reform aside for good? In a final decision made public on Wednesday, the Council of State has just canceled two of the most criticized measures: one relating to the calculation of the daily reference wage (SJR) from which the allowance is deducted, the other on the modulation of employers’ unemployment contributions.

This decision, which is partly in line with the requisitions of the public rapporteur following the hearing on November 4, follows appeals brought by three unions (FO, CFE-CGC and CGT) and two employers’ federations (the Alliance union plastics and composites of the future, Plastalliance, and the paper and cardboard inter-sector union).

The highest administrative authority first considered the decree of July 2019 on the reform in question was not illegal, contrary to what some applicants claimed. As a reminder, the text was adopted by the government of the day in the wake of the failure of negotiations between the social partners, which were to be based on a framework document setting a savings target of 1 to 1.3 billion euros per year over three years.

disproportionate treatment

The Council of State also did not follow up on the discriminatory nature denounced concerning the new period of membership necessary to be able to be compensated, which went from 4 to 6 months out of the 24 and not 28 months preceding the termination of the employment contract. . No more than for the rule establishing a degression of 30% after six months of the benefits paid for the unemployed under 57 years old and earning more than 4,500 euros.

However, the tiebreaker was chosen to override the rule of the RLS. The judges recognize that taking into account the days not worked in the denominator of the quotient used to calculate it is intended to avoid « that the same number of working hours results in a higher daily reference wage in the event of splitting of employment contracts than in the case of part-time work and thus encourage job stability ”.

Alas, the amount of SJR “Can now, for the same number of working hours, vary from simple to quadruple depending on the distribution of periods of employment during the 24-month membership reference period”. Verdict: a manifestly disproportionate difference in treatment with regard to the general interest ground pursued despite certain compensation.

Procedural reasons

The other rejection, for procedural reasons this time (use of orders instead of decrees for certain methods), relates to the rule, denounced by the employers, called bonus-malus intended to penalize, by increasing their rate. contribution, employers who abuse short contracts and reward others. After intense lobbying from employers’ organizations, the measure was limited to companies with more than 11 employees in seven sectors of activity.

Denouncing from the beginning the devastation that the reform would cause on the most precarious unemployed, FO, CGT and CFE-CGC hailed a victory without changing their demand: the return to the Unédic convention of 2017. Plastalliance did not neither shunned his pleasure, especially, underlined the professional federation, that the judgment “Comes during a year when the serious economic crisis has led or will lead to numerous end of fixed-term contracts or temporary contracts and economic breaches of contract”.

Faced with this legal setback, the Ministry of Labor referred to ongoing consultations with the social partners. They “Relate in particular to the adaptation of the new methods of calculating the SJR, and the conditions for implementing the bonus-malus” and “Will make it possible to propose solutions in accordance with the judge’s decision”, argues the Rue de Grenelle.

“We are currently finalizing a response which seems to me to be balanced between full respect for the philosophy of the reform and taking into account certain specific situations. We will have made this adjustment before March 31, 2021, the effective date of the Council of State’s decision: there will be no interruption of unemployment insurance rights for any beneficiary ”, added the Minister of Labor, Elisabeth Borne.

The highest administrative court considers that the rule for calculating the daily reference wage, from which the allowance is deducted, is discriminatory. That modifying the employer’s contribution comes up against a question of procedure. The Ministry of Labor refers to the corrections currently in consultation with the social partners.

The entry into force of the most criticized measures of the unemployment insurance reform has already been postponed twice.

After postponing it from September 1 to January 1, then to April 1, is the government going to have to put unemployment insurance reform aside for good? In a final decision made public on Wednesday, the Council of State has just canceled two of the most criticized measures: one relating to the calculation of the daily reference wage (SJR) from which the allowance is deducted, the other on the modulation of employers’ unemployment contributions.

This decision, which is partly in line with the requisitions of the public rapporteur following the hearing on November 4, follows appeals brought by three unions (FO, CFE-CGC and CGT) and two employers’ federations (the Alliance union plastics and composites of the future, Plastalliance, and the paper and cardboard inter-sector union).

The highest administrative authority first considered the decree of July 2019 on the reform in question was not illegal, contrary to what some applicants claimed. As a reminder, the text was adopted by the government of the day in the wake of the failure of negotiations between the social partners, which were to be based on a framework document setting a savings target of 1 to 1.3 billion euros per year over three years.

disproportionate treatment

The Council of State also did not follow up on the discriminatory nature denounced concerning the new period of membership necessary to be able to be compensated, which went from 4 to 6 months out of the 24 and not 28 months preceding the termination of the employment contract. . No more than for the rule establishing a degression of 30% after six months of the benefits paid for the unemployed under 57 years old and earning more than 4,500 euros.

However, the tiebreaker was chosen to override the rule of the RLS. The judges recognize that taking into account the days not worked in the denominator of the quotient used to calculate it is intended to avoid « that the same number of working hours results in a higher daily reference wage in the event of splitting of employment contracts than in the case of part-time work and thus encourage job stability ”.

Alas, the amount of SJR “Can now, for the same number of working hours, vary from simple to quadruple depending on the distribution of periods of employment during the 24-month membership reference period”. Verdict: a manifestly disproportionate difference in treatment with regard to the general interest ground pursued despite certain compensation.

Procedural reasons

The other rejection, for procedural reasons this time (use of orders instead of decrees for certain methods), relates to the rule, denounced by the employers, called bonus-malus intended to penalize, by increasing their rate. contribution, employers who abuse short contracts and reward others. After intense lobbying from employers’ organizations, the measure was limited to companies with more than 11 employees in seven sectors of activity.

Denouncing from the beginning the devastation that the reform would cause on the most precarious unemployed, FO, CGT and CFE-CGC hailed a victory without changing their demand: the return to the Unédic convention of 2017. Plastalliance did not neither shunned his pleasure, especially, underlined the professional federation, that the judgment “Comes during a year when the serious economic crisis has led or will lead to numerous end of fixed-term contracts or temporary contracts and economic breaches of contract”.

Faced with this legal setback, the Ministry of Labor referred to ongoing consultations with the social partners. They “Relate in particular to the adaptation of the new methods of calculating the SJR, and the conditions for implementing the bonus-malus” and “Will make it possible to propose solutions in accordance with the judge’s decision”, argues the Rue de Grenelle.

“We are currently finalizing a response which seems to me to be balanced between full respect for the philosophy of the reform and taking into account certain specific situations. We will have made this adjustment before March 31, 2021, the effective date of the Council of State’s decision: there will be no interruption of unemployment insurance rights for any beneficiary ”, added the Minister of Labor, Elisabeth Borne.