The specific fixed term contracts in the Broadcasting industry: freedom vs litigation risks
The French Labor law code allows employers to use fixed terms contracts under certain conditions strictly determined but is very fuzzy when it comes to specific fixed term contracts called “customary contracts”.
This specific customary contract suffers poor limitations comparing to the “regular” fixed terms contract.
It is provided that the customary contract can be concluded when the job is temporary by nature regarding the type of job and the type of activity.
The Labor law Code also provides with specific business that are allowed to hire under this customary contract.
As this customary contract can be extended and does not allow the same indemnities as the regular fixed term contract, the French Supreme Court is very strict when it comes to any litigation.
What are the « temporary jobs »?
For a while, the Collective Bargaining agreement could determine the temporary jobs, and the employer was not obliged to justify this temporary nature: From November 2003, The Supreme Court provided that the temporary nature of the job had no consequence on the validity of the contract, as far as a permanent use existed in the given business allowing to hire under a customary contract.
The Supreme Court put an end to this “spell of freedom” in 2008: the temporary nature must be proven by the employer since.
A vicious circle started, the more customary contracts were used, the less the job was supposed to be temporary.
In the broadcasting industry, the program schedules are temporary by nature… but some of them may last for several years (Thalassa TV program celebrated its 40 years!).
As an example, in a case date March 11, 2014 (n°09-88073), the Supreme Court confirmed the criminal condemnation of 2 companies of the Broadcasting industry, both of them subsidiaries of M6 Group. One of them for signing 23 customary contracts for several years for cameramen, gaffers, lightning electricians, sound recordists, hair dressers, make-up artists and the other for hiring journalists under customary contracts for almost a year.
The judges considered these activities were permanent because of the extension of these contracts during several years for a certain amount of days.
Some specificity in the Broadcasting and show industries
In the broadcasting and show industries, the employee hired under a customary contract benefit from the entertainment worker status after 507 working hours within 10 months (3 and ½ month of work) which allows him to benefit from an unemployment insurance for 8 months.
This protection can help from asking damages at the end of the contract but does not protect from litigations and the judges do not consider that this allowance must be taken into account to assess the damages.
The main risk of hiring under a customary contract
If the employer does not respect the requirements of the Supreme Court, the employee can ask for an undetermined term contract
The bill can be huge: the end of the contract can be considered as an unfair dismissal, and the employee could ask per se for a month salary damages + damages for unfair dismissal + a back pay for the unworked period of time between each contract if the employer cannot prove he was not the only employer (French Supreme Court, November 30, 2010).
As example, an editor who worked for a TV channel from 1993 to 2006 with 508 customary contracts get the recognition of an undetermined term contract with the pay back of the unworked period of time (within the prescription period) (French Supreme Court, June 3, 2015).