I take advantage of the news (the title already deflower the subject) to return to a fundamental labor law, namely the contract of employment.
Labor law governs relations between employers and employees. It is, in essence, very protective with the latter, in the case of an unbalanced contractual relationship, which could be compared to that existing between professionals and consumers in consumer law.
Recall the principle: the existence of a salaried employment relationship does not depend on the will expressed by the parties, nor on the name they gave to their agreement, but on the factual conditions in which the activity is exercised. workers.
It is up to the judge under Article 12 of the NCPC to seek these factual conditions with a view to a possible requalification of the contractual relationship between the parties.
It is therefore important to determine which criteria characterize an employment relationship and therefore the existence of a contract of employment (which, with regard to the contract of indefinite duration and unless collective agreement to the contrary, can be perfectly concluded verbally) in order to determine whether the Labor law rules are applicable to a given situation or not.
The employment contract is first and foremost a synallagmatic contract within the meaning of Article 1102 of the Civil Code connecting two contractors, the employer and the employee, with obligations to each other and by which a person (the employee) agrees to work for and under the direction of another person (the employer) for remuneration.
Three elements characterize it, the last of which is predominant since it is the essence of the employment relationship:
- providing a job
- payment of remuneration
- the existence of a relationship of subordination
It is this last element which distinguishes the contract of employment from other types of contract and forms the basis of the judicial procedures for requalification.
According to the Court of Cassation's consistent case-law on the subject, "the bond of subordination is characterized by the performance of work under the authority of an employer who has the power to issue orders and directives, to control the execution and to punish the failings of his subordinate.Integration in an organized service is an index of the relationship of subordination when the working conditions are unilaterally determined by the contracting party ".
However, a number of situations are dangerously close to the definition of the employment contract. This is particularly the case for example for:
- a national education official who had agreed to teach in a private institution first as an employee and then as an "external speaker" paid fees
- a doctor who did not have a room and was not free to choose his patients, provided care to clients of the clinic, in the premises and with equipment and personnel provided by that establishment, was subject to certain schedules, services and nocturnal guards to be insured, was subject to the rules of the clinic and integrated into the medical service organized by its leaders
- a driver of a transport company, who together with other drivers had created a "joint venture" for the operation of company trucks even though the company had retained control of the organization of work and Conditions of sale
The requalification also directly affects the legal profession with the status of the collaborating lawyer. Strictly speaking, the employee tends to be very similar to an employee of the lawyer for whom he works, especially in large firms. No ?
Recall the definition of salaried lawyer according to the law of December 31, 1971 and the decree of November 27, 1991: it is the lawyer who is bound by an employment contract to another lawyer and whose subordination is characterized in particular for him by the impossibility of having or developing a clientele.
The Court of Cassation has considered the issue on several occasions and has thus reclassified into a labor contract a collaboration contract which did not allow a collaborating lawyer to have the necessary time for the constitution and development of a clientele.
To be more precise, the criterion is not the actual existence or not of the personal clientele but the possibility or not to develop such a clientele. The criteria selected therefore mainly relate to the material means of development (time required, access of the employee to the waiting room or the secretariat for his personal clientele, office allowing the reception of clients).