Bill No. 1073 on the donation of leave
10.12.2022
Bill No. 1073 on the donation of leave (2022-17 of 1 December 2022), tabled in the Public Session on 5 December 2022, aims to allow an employee to give one or more days of rest to a colleague who is facing a particularly serious family situation.
In the public sector, since Law No. 1.527 of 7 July 2022 amending Law No. 975 of 12 July 1975 on the status of State civil servants, a civil servant may (at his or her request and anonymously) give up all or part of his or her leave without compensation for the benefit of another civil servant or contractual State employee who is caring for a sick or disabled child or a child who has suffered an accident, or who is assisting a disabled relative or a relative who is losing his or her autonomy.
In the private sector, as things stand, only the banking sector provides for the granting of leave (Avenant No. 22 to the Monegasque collective labour agreement for bank employees).
Bill No. 1073 takes into account the wish of the Economic, Social and Environmental Council (Conseil Economique, Social et Environnemental) to generalise voluntary, anonymous and disinterested donation of leave to all employees in the private sector (wish no. 2021-795 of 10 November 2021). The system will be completed by a sovereign ordinance of application.
The Explanatory Memorandum refers to French law (the right to leave was established in France by the “Mathys” Act No. 2014-459 of 9 May 2014 allowing the donation of days of rest to a parent of a seriously ill child, then Act No. 2018-84 of 13 February 2018 extended the donation of leave to situations of disability or loss of autonomy of a close relative, and opened up the scheme to public sector employees).
PROPOSED PROVISIONS:
→ Principle:
An employee could, at her/his request (voluntary) and in agreement with the employer (assessment of the appropriateness of the gift of leave in relation to the availability of his teams), give up anonymously and without consideration (disinterestedness), all or part of his untaken days of leave for the benefit of another employee of the company who is in one of the following situations:
– either she/he assumes the responsibility for a child suffering from an illness, a disability or a particularly serious accident making a sustained presence and constraining care indispensable;
– or she/he is helping a close relative suffering from a particularly serious loss of autonomy or having a disability (when this relative is, for the beneficiary of the donation, one of those defined by sovereign order).
→ Terms and conditions:
• The employee could only give up her/his annual leave “for its duration exceeding twenty-four working days”, i.e. only his fifth week of paid leave (and not the first four). This limit is intended to reconcile the giving of leave with the public policy rules on the right to paid annual leave.
The Explanatory Memorandum refers to French and European Union law (Article 7 (1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time) “to which the Labour Court refers in its decisions”, in order to consider that “the fifth week is an additional week, which may benefit from a more flexible regime”.
• The employee who is the beneficiary of one or more days assigned would be entitled to maintain her/his remuneration during the period of absence, which would be treated as a period of actual work for the purpose of determining the rights that the employee has by virtue of his or her seniority, and would retain the benefit of all the advantages acquired before the beginning of the period of absence.
Thus, the compensation for the leave given would be calculated on the basis of the beneficiary employee’s salary. The beneficiary employee would retain his or her remuneration regardless of the salary level of the colleague who donated the leave.
The employee would retain his or her seniority at the time of going on leave, and the period of absence would be taken into account to increase his or her seniority time.
On the other hand, the period of absence for donated leave would not be considered as actual working time for the determination of the duration of paid leave (unlike the case of family support leave where this is the case).
The terms of application would be determined by sovereign ordinance.