Wednesday February 24, 2015 the French council of state was cancelling a July 1st 2013 order extending cinematographic production labor agreement. This one was applicable and compulsory for the advertising sector since October the 1st 2013 and has been revised by an October 8th 2013 amendment applicable on its own since December 25th of the same year. Therefore companies, which are registered under SIC codes 5911B and 5911C, were compulsory subject to this labor agreement.
The 5911 B SIC Code corresponds to advertisings production when the 5911 C SIC Code corresponds to cinematographic production. But the advertising sector wasn’t tolerating the labor agreements extension because it was involving strict measures judged too inflexible according to special features of the sector. The council of state decision which judged that the only signatory federation of employer on the labor agreement, namely the Independent Producers Association (API in French), wasn’t representative on the sector, especially according to numbers of films produced and concerned employees. The extension order had also to be cancelled. If this decision was predictable, it only has a weak impact in practice. First of all, the decision canned not take account of the October 8th amendment, which had been rallying the most of producers federations (UPF, AFPF, APC…) to the labor agreement. Those federations had also cancelled their participation to the action for annulment. This omission was already promising a government comeback.
A new extension would seem like a reiteration of the misunderstanding between production sectors, which don’t have same productions. Indeed in the advertising sector, APFP negotiations try about a specific labor agreement, which would be a good initiative, had been held in abeyance. Therefore according to advertising and low budget films producers the council of state annulment is a symbolic support to prove that sectorial special features have to be considered, in the audiovisual production as well as everywhere else. But the government would not allow this legal loophole for a long time. This one also quickly reminded the “ lot of representative federations” rallying in order to justify a new extension procedure of the labor agreement in March 2015. Therefore, and even if we can regret it, it seems that practical consequences of the labor agreement on advertising production are still applicable.
In consideration of this sector, promos, graphic design and brand content are excluded from the cinematographic production labor agreement field of application because they are under the audiovisual one. Then the labor agreement is redefining all posts, since it should be done to literally reproduce the exact title of the post on the contract of employment and on the pay slip. About the distinction between executives and non-executives, the creation executive notion has been created. About the work time, the agreement is establishing a wages table based on 39 hours per week corresponding to the legal 35 hours to which can be added 4 hours overtime at 25%. The maximum working hours per week can be raised at 48 hours, that is to say 8 hours overtime, over the legal duration of working hours, at 25% (so from the 36th hour to the 43th hour included) to which can be added 5 hours overtime at more than 50% (so from the 44th hour to the 48th one included). Beyond, work time had to be justified by an exceptional situation and is also raised at 75%. The maximum working hours per day is 12 hours (actually 13 hours in practice, including meals, tidy up time and transport). To finish a day of work can’t be pay on a basis under 8 hours for short contract of employment and 7 hours for long contracts of employment (those ones have to exceed 5 days, during the same week or not).
Then increased hours have to be distinguished from overtime hours. And that’s where the shoe pinches. Indeed, increased hours are varying according the long or short nature of contracts of employment and working hours during a day. Therefore on short-term contracts, every hours are increased at 50%, and 9th, 10th, 11th and 12th hours are increased at 100%. On long-term contracts there is no increase except for 11th and 12th hours, which are increased at 100%. It’s important to underline that this increase is especially higher for advertising producers and not for other ones: Indeed article 34 of the labor agreement provided those conditions under the following quote: “ Only for advertisings”. Therefore any producer is only increased at 25 % (against 50% for advertising producers) on minimum basic wage guaranteed and the minimum day rate guaranteed can’t be less than 7 hours (against 8 hours for advertising producers). So everybody seems to consider that advertising producers are favored compared to other ones and also can afford higher expenses. But it’s forgetting that if the job looks less “prestigious”, it has the merit of dispensing a serious additional wage to a lot of technicians and of being a potential springboard for young talented directors. Plus, it’s also forgetting a general common sense principle, which grants an equal remuneration to equivalent jobs. About the increase, there are specific conditions: The 6th day per week is increased at 100 %, night-work hours are increased at 50 % for the first eight and at 100 % for the next ones (night-work hours being from 10pm to 6am during summer and from 8pm to 6am during winter) and Sunday work is increased at 100 %, just like public holiday. In order to link increase principle and overtime hours together, it’s important to understand that they are added one another in the limit of 100 %. It means that no hour can be paid more than twice the basic hourly wage.
It’s possible, for the Film preparation to get beyond overtime hours by providing a fixed wage for all technicians who are independent in their jobs, which is relieving an important part of the administrative management. Work time is also uttered in days, even for a calendar week. However it’s impossible to do the same thing a shooting days for which technicians are by definition subject to a collective labor agreement, which includes collective working hours. The director isn’t a technician just like other ones. Indeed he is hired on a fixed wage, without any hour reference including the shooting period, whose minimum is fixed per week or day and is provided on the salary grid. To finish the director is hired under a reduced rate social contribution according to his intermittent artist status.
Beyond the “increase sanction”, the dissension is about the minimum salaries grid. Big names of the sector composing the API (Pathé, Gaumont, UGC and MK2) are the only ones who can afford it. This is explaining why there were a lot of controversies when the text was voted. In this respect, it’s important to note that the “rallying” of other federations was made under the imperative condition of an increase of the cinematographic tax credit. Negotiations were also made under an usual pressure and this measure can’t benefit advertising producers. Therefore it’s legitimate for APFP to ask for a specific and sectorial labor law, more realistic with the ground means or, at least, egalitarian. Different sectors could also ask for new negotiations, which were promised at the October 2013 extension occasion such as documentary or low budget movies. Still, if positive law is currently pending, advertising producers should be concerned by the agreement, again and soon.
According to the labor law agreement, concerned societies are the ones producing “short time audiovisual works, which have for object goods, services, brands or causes promotion”. For the moment, concerned employees are only technicians. About the territory the agreement is concerning French and foreign services. Local law concerning the public order is still applicable and foreign employees hired by a French producer in a foreign country, for foreign shooting exclusively, aren’t under the agreement. This territorial field of application combined with stricter measures is probably explaining the offshoring movement currently observed in the advertising sector. In case of a new extension, those who will stay in whole or in part in France will be subject to the agreement for employees’ services made after October 1st 2013, including current ones. Prudence is also the watchword during those times of pending law.