Changing collective agreement: employer’s notice of withdrawal insufficient

Industrial relations
Change of collective agreement: the employer’s notice of withdrawal is not enough
Court of Cassation, Labour Division

A number of workers sought application of the private healthcare collective agreement and payment of the resulting wage differentials. The employer had communicated a switch to a different collective agreement but had then continued to apply the previous one. Both the Tribunal and the Court of Appeal upheld the claims.
The Court of Cassation confirmed the decision. The clause maintaining the collective agreement in force until renewal identifies a terminal date: before that point, the individual employer cannot withdraw unilaterally, not even by giving notice. The power to give notice of withdrawal belongs to the organisations that concluded the agreement. Upon expiry, by contrast, the employer may choose a different agreement, unless it is bound to the renewal by virtue of membership of the signatory employers’ association.
In the case under examination, the continued application of the agreement even after renewal was found to constitute a conclusive course of conduct capable of binding the employer notwithstanding the prior communication of a change. For companies, amending the applicable collective agreement therefore requires careful attention both to the expiry date and to subsequent conduct: pay and management of the employment relationship must be consistent with the declared choice, failing which wage differentials may accrue.