OD FLASH | Collective bargaining and health insurance: Court of Cassation rules that the termination of a collective agreement cannot be implied

Cass. soc., 29 mai 2024, n°22-23.415

On 27 October 2006, an employer and a union signed a company agreement that allowed employees to benefit from a supplementary “health care costs” scheme, apparently on a compulsory basis. On 4 December 2006, an additional company agreement was signed providing for the co-financing of the healthcare costs scheme by the central works council. Since 1 January 2005:

– the financing of supplementary social protection guarantees by the works council is treated as an employer contribution and therefore benefits from the exemption from social security contributions provided for in article L.242-1 4° II of the Social Security Code.

These exemptions are subject to strict conditions. In particular, the coverage must be collective and compulsory, and must be the subject of a legal instrument in the form provided for in Article L.911-1 of the Social Security Code (company agreement, agreement by referendum or unilateral decision by the employer). 

A few years later, negotiations were launched to revise the terms and conditions of this supplementary health insurance scheme in view of the obligation to introduce collective health insurance from 1 January 2016 (introduced by Law No. 2013-504 of 14 June 2013 on job security and the generalisation of supplementary health insurance).

As these negotiations were unsuccessful, the employer took a unilateral decision on 18 December 2015 to adjust the health care costs coverage, to set the new contributions and their distribution between the employer and the employees, taking into account the works council’s contribution set by the agreement of 4 December 2006.

The central works council and the trade union representatives then challenged the distribution of contributions resulting from this unilateral decision before the court, in particular in so far as it maintained the provisions of the agreement of 4 December 2006 on co-financing by the central works council. They argued that the latter was null and void because the agreement of 27 October 2006 had been implicitly terminated by the employer’s unilateral decision.

The Poitiers Court of Appeal agreed with this analysis and ruled in favour of the central works council.

The employer appealed against that decision.

The Court of Cassation overturned and annulled the appeal decision, establishing the principle that the termination of a collective agreement cannot be implied. It ruled that “the modification, by unilateral decision of the employer following the failure of collective bargaining, of a supplementary health insurance scheme established by collective agreement, made necessary by compliance with new legal and contractual provisions, does not deprive a previous collective agreement on the co-financing of this supplementary social and cultural activities scheme by the staff representatives of a reason and therefore does not render it null and void”.

A company agreement introducing a supplementary social protection scheme cannot therefore derogate from the rules of ordinary law relating to the termination of collective agreements.