France: New decree clarifies nightwork

A new decree updates and clarifies French legislation on nightworking. This follows an amendment made in January 2001 which lifted the prohibition on nightworking for women, thereby bringing French law into line with European equality legislation.

The decree (no.2002-792) was published in the French official journal on May 5 2002. It affirms the general principle that nightwork should be the exception, not the rule, and may only take place when it is essential and where economic and social circumstances demand it, for instance, where a continuous shift system is in operation. In certain public services (such as hospitals) or leisure industries (such as discotheques or casinos), nightwork is deemed to be inherent to the organisation of work. The legislation makes the point, however, that after taking into account all the related aspects of nightwork and the health and safety of the employees affected, it may no longer prove to be a cost-effective mode of work for a company and should only be countenanced after all other possibilities have been examined. The law will affect all sectors of the economy apart from mobile employees working in the transport sector, who were excluded from nightwork legislation by the recent social modernisation legislation. Non-mobile workers in these sectors are, however, covered by the law.

The decree in detail

From now on, the introduction of regular nightworking or its extension to new categories of employees will only be possible through prior agreement in a collective accord at sector or enterprise level.

The law provides clarification on three main issues:

  • the definition of a nightworker, calculated over a period of 12 consecutive months;

  • the conditions for derogation from the maximum daily quota of eight hours; and

  • the conditions of allocation to nightwork by a labour inspector.

    It also includes detailed requirements for the medical supervision of nightworkers.

    Definition of nightwork

    The decree defines nightwork as all work that takes place between the hours of 21.00 and 06.00. However, another period of nine hours of consecutive work between 21.00 and 07.00 may be set out by an extended sectoral accord, a company or an establishment collective agreement, provided that the period includes the core time of midnight to 05.00.

    A nightworker is an employee who regularly works at least twice a week for a minimum of three hours during the above-mentioned times. A nightworker may also be an employee who works for a minimum number of hours at night during a given reference period. The minimum number of nightwork hours and the reference period are fixed by extended sectoral agreement. Where no agreement exists, the law deems this to be at least 270 hours over a period of 12 consecutive months.

    Maximum working time and compensation for nightworkers

    The law sets out a daily maximum of eight hours' continuous work with at least 11 hours' rest between shifts. Thus an employee who works from 18.00 to 02.00 may not begin working again until 13.00. Nightworkers may not work an average of more than 40 hours a week over a period of 12 consecutive weeks.

    All nightworkers are, by law, entitled to compensation in the form of rest, and, if appropriate, extra pay. In companies where employees were not already in receipt of compensatory rest, employers had been given one year's grace dating from legislation passed in May 2001 (until 12 May 2002) to introduce it, either by means of an extended sectoral agreement, or a company- or establishment-level accord, or, in the absence of an agreement, after consulting with the works council, union delegates or shop stewards. The means for allocating the compensatory rest or appropriate payment should also be included in a collective agreement, if one exists. If not, the employer must ensure that the nightworkers receive the correct compensation.

    The 2001 legislation obliges employers introducing regular nightworking, or extending nightworking to new categories of workers, to do this within the framework of a collective agreement. If a company which has no nightworkers wishes to introduce nightworking, it must either hire workers as nightworkers or transform day workers into nightworkers.

    Extending nightwork into new categories of employees will involve the assignment of workers, in an establishment that already has nightworkers, to jobs involving tasks or functions which will henceforth be performed by nightworkers. For example, in a restaurant that already employs a night-time chef, the appointment of a night-time waiter would constitute an extension of nightworking to a new category of employee. In a factory where continuous shift systems already operate, introducing a new shift would only constitute an extension of nightworking if the tasks to be carried out by the new team differ from those that are already carried out.

    A collective agreement will define what types of job are likely to be carried out during the night, and should justify their necessity. The agreement must contain the following points:

  • the justification for nightworking;

  • the details of the compensatory rest for the nightworkers, or, if appropriate, the details of any extra payments;

  • the details of the planned measures to improve working conditions for nightworkers;

  • measures that are designed to assist nightworkers in fulfilling both their jobs and their family and other social commitments, in particular, regarding transport to and from the place of work;

  • measures designed to ensure equal opportunities for men and women, in particular, access to training; and

  • the organisation of breaks.

    Certain issues may be resolved either by an extended sectoral agreement or by a company or establishment accord. Sectoral agreements making provision for nightworking must contain all the above-mentioned clauses if nightworking is extended across the sector by the labour minister, thus making them obligatory in all enterprises where nightworking is carried out or is planned.

    If all the clauses are not included, the sectoral accord will only apply to companies that already operate at night. Companies in the sector will not be allowed to introduce nightworking, nor extend it to new categories of worker. A clause to this effect will be included in the decree which extends the accord.

    Existing agreements

    Agreements concluded prior to the implementation of the new law will be required to conform to the following conditions:

  • Agreements may contain clauses that are more favourable to employees than required by the law but they may not derogate from public order clauses. Thus, any clauses in agreements concluded before the law of 9 May 2001 that make provision for nightworking that do not conform to the law must be renegotiated. The new clauses will apply to signatories as soon as the agreement has been signed, and to other enterprises in the branch as soon as the extension decree has been published.

  • Certain agreements already provide for compensation for nightworking in the form of rest, but do not contain precise details of when the rest-time will be given. They are required to extend the right to compensatory rest to work commencing between the hours of 21.00 and 22.00 and ending between 05.00 and 06.00. The compensation time must be specifically targeted at nightworkers.

  • Other agreements only provide for nightwork premia. In such cases, additional compensatory rest should be negotiated for those classed as nightworkers.

  • In some agreements, nightworking premia are paid to workers who are not strictly defined as nightworkers. In this case, trade unions may keep this premium in a collective agreement, perhaps linking it to work carried out between 22.00 and 05.00. If a collective agreement only makes reference to wage supplements "for nightwork", then the new legal definition for what constitutes night-time work applies.

  • If working time for nightworkers is shorter than collectively agreed working time, the difference may only be considered as compensatory rest if this only applies to nightworkers and is paid time off.

    Guarantees for transferring between daywork and nightwork

    Nightworkers who wish to transfer to daywork and dayworkers who wish to transfer to nightwork within the same company have priority if a post of the same status becomes vacant. If nightwork is incompatible with the employee's family commitments, such as caring for a young child or dependant, a nightworker has the right to demand daywork. Similarly, a dayworker has the right to refuse to change to working at night without the threat of dismissal.

    Statutory medical supervision for nightworkers

    All nightworkers are entitled to regular medical checkups before commencing nightwork and at least every six months thereafter. Up until now, this requirement only applied to employees who alternated day and night shifts.

    The new law also contains clauses relating to employees who are medically unfit to work at night. Subject to a report by the company doctor, these employees are entitled to transfer to day-time work, either temporarily or permanently, and, where this is possible, at the equivalent grade or level. Incapacity for nightwork does not constitute grounds for dismissal unless the employer has informed the employee in writing that there is no equivalent day job or the employee refuses to take up the new post on offer. The company doctor has to be consulted on all important decisions concerning the introduction of, or modification to the organisation of, nightwork.

    Specific clauses relating to pregnant women

    A woman who is pregnant or has just given birth has the right to demand day work, either on her own wishes or on the advice of her doctor, if her nightwork is incompatible with her condition. The employee must not suffer loss of wages as a result, and her place of work may only be changed subject to her agreement. If the employer is unable to offer her alternative work, it has to inform her or the company doctor of the reasons in writing. In this case, the employment contract is suspended with pay.

    Derogation clauses

    Alternative definitions of nightwork

    All work carried out between the hours of 21.00 and 06.00 is considered to be nightwork. However, the law also states that another period of nine consecutive hours between 21.00 and 07.00 may be defined as nightwork by extended sectoral agreement or company or establishment accord, as long as it contains the core period of midnight to 05.00. This means that the only other period of nightwork permitted is that between 22.00 and 07.00. Where there is no collective agreement in place, this alternative period of nightwork may be authorised by the labour inspector.

    Derogations from the eight-hour daily maximum working time

    The law allows the possibility of deviating from the standard eight hours a day maximum working time. This may be achieved by extended sectoral agreement or under authorisation of the labour inspector. Under these circumstances, the maximum length of working time may be extended to 12 hours.

    "Structural" deviations from the eight-hour maximum

    Such changes may be included in extended sectoral agreements. Article 17 of the working time Directive (93/104/EEC) of 23 November 1993 includes a list of activities for which derogations from the eight-hour working day are permissible. In their implementation of the Directive, member states may only allow for deviations from the statutory norm in these cases, but they are not required to include the full list. France, in the decree of 3 May 2002, has retained three generic types of permitted activity rather than providing an exhaustive and detailed list.

    These are as follows:

  • activities characterised by distance between home and work or by distance between the different places of work. The first case is mainly applicable to construction workers or to off-shore workers, or to workers who move around from place to place during the night;

  • activities involving security guards; and

  • activities required to ensure continuous production or the continuous provision of services, principally people working in warehouses or who are providing transport services. This category of employee mainly includes people working in the health service or social services, people working at ports and airports, employees in the media industries (newspapers, radio and TV), postal and telecommunication workers, employees in the ambulance service, the fire service or the police force, water, gas and electricity services, or industries that rely on continuous production and agriculture.

    Additionally, employees in the transport industry are included in the range of derogations permitted under the Directive 2000/34/EEC, of 22 June 2000 (EC: Conciliation committee agrees working time Directive extension), which amends the working time Directive by extending the range of activities covered. However, mobile rail, airline and shipping employees are exempt, as they are covered by the social modernisation legislation.

    Conditions regarding compensation

    Employees affected by the derogation to the eight-hour working day must be given compensatory rest which is at least equivalent to the number of additional hours worked under the derogation. This period is basically that which extends beyond eight consecutive hours. Thus, an employee who works for 10 hours is entitled to at least two hours' rest. If the period of rest is not required to be paid, however, the wages of the employee are unaffected.

    This applies even if the compensatory rest pushes the employee's working limit time below the legal limit - the employee's pay is not reduced as a result. The rest period must be taken as close to the extra period of working time as possible to facilitate effective rest.

    Finally, in exceptional circumstances, if it is not possible to allow a rest period, the collective agreement may provide for a suitable alternative that does not jeopardise the health of the employee.

    Derogations in special circumstances

    In exceptional circumstances, derogations from the maximum working time of eight hours are permitted. These circumstances are defined as being unexpected, abnormal, unforeseen, or due to exceptional events.

    Two possibilities are envisaged:

  • the request for a derogation should be addressed to the relevant labour inspector by the employer; and

  • in cases of urgent work that involves rescue operations, the prevention of an imminent accident or carrying out essential repairs.

    The law also takes into account exceptional circumstances for derogations. Accordingly, if a period of rest cannot be granted as close to the actual time of working as is desirable, an alternative compensation may be set out in a collective agreement. When there is no collective agreement at sectoral or enterprise level, or the agreement in force does not allow for any alternative form of rest compensation, the employer is obliged to offer the appropriate period of rest.

    Derogations from the maximum of 40 hours per week over a period of 12 consecutive weeks are permitted in circumstances linked to the nature of the work to be carried out. Thus, it may be justified to work up to a limit of 44 hours a week over 12 consecutive weeks, as long as this is provided for by an extended sectoral agreement. Parallels may be drawn with sectors that are already covered by permissible derogations from the maximum daily working time.

    The law also allows for the possibility of establishing a list of such sectors by decree. However, no decree has as yet been drawn up in order to give the social partners the chance to negotiate on this, perhaps taking a sector-by-sector approach. Some industrial sectors which are presently required to adhere to the 35-hour week allow the maximum working week to be increased from 44 to 46 hours over a 12-week period. However, nightworkers are not permitted to exceed 44 hours in any 12-week period.


    Main points of the new legislation

  • The law applies to all sectors, with the exception of mobile employees working in the transport sector, who are covered by the new social legislation.

  • Nightwork is defined as all work that takes place between 21.00 and 06.00, with the possibility of extending it until 07.00 by sectoral agreement.

  • A nightworker is an employee who works at least twice a week for a minimum of three hours during these times or during a given reference period, both to be fixed by a sectoral agreement or extended sectoral agreement. Alternatively, the law allows for anyone who works at least 270 hours over 12 consecutive months to be classed as a nightworker.

  • Nightworkers are only allowed to work up to eight hours continuously and must have at least 11 hours' rest before beginning the next shift.

  • Compensatory rest periods must be provided for nightworkers, even if they receive extra pay for nightworking.

  • Any changes or derogations have to be introduced by sectoral agreement, extended sectoral agreement, or company or establishment accord.

  • Labour inspectors have the right to allocate nightwork in certain circumstances.

  • The law introduces compulsory medical checkups before commencing nightwork for all affected employees (not just those alternating day and nightwork), and at least every six months thereafter.

  • Pregnant women or women who have just given birth are protected from having to perform nightwork if it is incompatible with their situation.