The principle of "equal pay for equal work" has to a large degree been challenged by the Social Division of the French Supreme court. The French Supreme court recently held that "Does not ignore the principle "equal pay for equal work "... the employer who justifies by objective and materially verifiable reasons the difference in remuneration between employees carrying out the same work or a work of equal value "(June 21, 2005).

For whom the bell tolls ?

The calling into question of the principle had already been outlined by the French Supreme Court in a decision handed down on January 11, 2005, which was given less public attention. Trade unions had entered a claim seeking the cancellation of individual measures granted by a company to a group of executives under an agreement for the reduction of working time for the operational executives, by in particular referring to the violation of the principle "equal pay for equal work ". The French Supreme court did not follow the argument of the trade unions holding in the case that "... it was an individual undertaking granted to a category of executives with particular responsibility for management at group level whose situation was not identical to those of the other operational executives".

This development of case-law opens the way to the recognition of the individualization of the contract of employment. It also must be seen in a context in which the traditional limits to negotiation and the role of the traditional players are called into question.

The reappropriation of negotiation

The "French social model" is based on a principle of public policy granting protection to the employee, from which exceptions are only authorized in one direction more favourable to the employee. The traditional representation of French employment law is a pyramid, the law constituting the base, the collective agreement the complementary level of protection for employees within its scope and finally, at the top the additional benefits granted to the employee by the contract of employment. Collective bargaining agreements and collective agreements, and their hierarchical organization, reflect the closed field of negotiation. Only a limited number of players are allowed to take part in the negotiation guaranteed by the trade-union monopoly conferred by the law on the trade-union organizations of employees and employers’ federation to represent the interests of employees in collective negotiations and sanctioned by a criminal offence.

A breach in this principle occurred with the law of May 4, 2004, authorizing henceforth an agreement within the company to constitute an exception to a sector wide agreement. In the eyes of some, this will be seen as a questioning of the legitimacy of the monopoly on collective negotiation.

Beyond this observation, it is permissible to wonder whether this development is not a sign, probably related to the internationalization of social relations, of a new drive to reappropriate negotiation by the parties to the employment relationship, i.e. the employer and the employee.

The request for recognition of the individualization of the contract of employment is reflected in this claim. If the contract of employment is a special contract, it is also a contract subject to the provisions of the general law of the contract. The civil law concepts of "good faith" and "loyalty" preserve all their acuity as regards the individual employment relationship and could experience new developments with the recognition of the individualization of the contract of employment.

Towards compulsory individual negotiation ?

At the same time as there is an obligation of collective negotiation, there could be compulsory individual negotiation. However if the former was instituted by law, the latter will result from pressures exerted by the international employment market.

When the Social Division of the French Supreme court decided that the validity of a non competition clause is subject to a financial counterpart, it opened up new scope for individual negotiation. To impose on the employee a non competition clause, and except in circumstance where the financial counterpart is laid down in the applicable collective bargaining agreement, the employer now has an individual obligation of negotiation.

It is the same with the calling into question of the principle "equal pay for equal work". Henceforth, when circumstances objectively justify it, the employee knows that he will be able to negotiate the added value that he is likely to bring to his future employer and the latter, within the framework of this obligation of individual negotiation, knows that he will be able to respond individually to this added-value.

Negotiation under the control of the courts

The individualization of the contract carries in itself its own limit: the prohibition of any discrimination. Individualization will have to be able to be justified by the interest of the company, and also of the employee, and to be based on objective factors submitted to the control a posteriori of the courts. It will thus be advisable to follow this discrete development of case-law attentively and to allow this new claim, the individualization of the contract of employment and its necessary corollary individual negotiation, to be fully heard.