Law Applicable to Contractors' Personnel
Law Applicable to Contractors' Personnel
Are the competent authorities in matters of labour laws entitled to intervene on the part of the CERN domain which is situated on the territory of the other Host State?
Yes, the competent authorities, OCIRT or commissions paritaires in Switzerland and DIRECCTE (Labour Inspection) in France, are entitled to control that the law to be applied for a contract, which 4P has been defined respectively as Swiss or French, is complied with. Infringement of the applicable law according to the Agreement will be pursued by the authorities of the State on whose territory the 4P is situated.
The law to be applied by subcontractors of the contractor to their personnel shall be the same as the one defined by CERN for the main contract, provided the subcontractor provides services on both the French and Swiss territories. By contrast, it does not apply to subcontractors intervening only on either the French part or the Swiss part of the CERN domain.
The applicable law as indicated in the invitation to tender shall be complied with during the whole duration of the contract.
The contractors must inform, in writing, their concerned employees and their potential sub-contractors of the applicable law according to the Agreement. They must also take the necessary measures so that their subcontractors also inform their concerned employees.
The application of the 4P principle does not affect the acquired rights of the employees concerned at the time of the contract award.
The 4P principle consists in determining, on the basis of the distribution of the services to be executed in France and in Switzerland, which law shall apply in the following matters, for the whole contract and its whole duration, to the contractor’s personnel performing the services:
- the maximum period of work and minimum periods of rest, and the relative provisions for compensatory rest
- the minimal duration of paid annual leave; the relative provisions related to holidays
- the minimal salary rate, including increases for overtime
- conditions provided to temporary workers
- hygiene, security and occupational health
- the applicable protective measures related to working conditions and the employment of pregnant women, women who have recently given birth, children and young persons
- equal treatment of men and women, as well as other provisions in terms of non-discrimination.
In other matters, notably those related to recruitment, suspension, breach of contract and the representation of personnel are not affected by the Agreement that similarly is not to the detriment of the acquired rights of the employees concerned.
Refer also to section 1.3 of the document « Working on the CERN site».
What happens if a firm has more than one contract with CERN and if, according to the 4P principle, the law applicable for one contract is French law but is Swiss law for another contract?
The firm concerned shall comply, for each contract, with the applicable law as defined according to the 4P of this specific contract. The approach shall be « per contract » and not « per firm ».
What happens if the situation changes during the contract execution (e.g. postponement of LS2 for one year) and modifies the 4P?
In such case, the applicable law will not change. The Agreement foresees that the law applicable to the contractor’s personnel is defined for the entire duration of the contract, including its extensions. However, it is understood that, should the change of situation have a long-term impact on the 4P, CERN would proceed with a new invitation to tender for the contract concerned.
The 4P principle applies to contracts concerning services provision of any nature, on both the French and the Swiss parts of the CERN domain, whatever their duration. It does not apply to the delivery of merchandise only, or to services carried out on only one part of the CERN domain. Furthermore, it concerns only contracts which are tendered after the entry into force, on 18 January 2014, of the “Accord entre le Gouvernement de la République Française, le Conseil Fédéral Suisse et l’Organisation Européenne pour la Recherche Nucléaire (CERN) sur le droit applicable aux entreprises intervenant sur le domaine de l’Organisation”.
The law to be applied by the contractor to his personnel in the framework of the contract he will have been awarded, is the law defined (in the basis of the 4P principle) in the corresponding invitation to tender (or price enquiry), in section 2.3 of the technical specification.
The 4P will be determined by CERN when sending out the invitation to tender and on the basis of the objective and quantifiable criteria defined in the Agreement. Once defined, the applicable law (French or Swiss) shall remain valid for the whole duration of the contract, including its extensions.
The 4P principle will be applicable as from 18 January 2014, date on which the “Accord entre le Gouvernement de la République Française, le Conseil Fédéral Suisse et l’Organisation Européenne pour la Recherche Nucléaire (CERN) sur le droit applicable aux entreprises intervenant sur le domaine de l’Organisation” will enter into force.
It will apply to contracts concerning the provision of services on both the French and Swiss parts of the CERN domain and for which the corresponding invitation to tender has been sent out after 18 January 2014.