Summary
What is common for both contracts
The CDI and CDD contracts are two employment contracts, so they must meet the 3 essential elements in terms of the employment contract, cumulative way (i.e. the 3 must be respected).
- service (the employer must provide the employee with work, if this is not the case the employment contract is not respected);
- subordination (the employee must work under the directives of a person who may be the head of the company, a department manager, etc.);
- remuneration (“all work deserves a salary”, the employer therefore has the obligation to remunerate his employee otherwise the employment contract is not respected).
CDI, CDD: global definition
CDI contract: Permanent contract
The labor code gives a definition of the CDI contract, which it qualifies as a common law contract, that is to say the one which is considered as the standard contract by the labor code.
(Cf. Article L1221-2: “The open-ended employment contract is the normal and general form of the employment relationship”.)
Since July 1, 1993, a community directive has required employees to be issued, within a period of 2 months following the hiring, of a document including some information on their working conditions.
Fixed-term contract: Fixed-term contract
The CDD contract is an exceptional contract, that is to say that it constitutes an exception to the basic contract provided for by the labor code.
The form of two contracts
CDI contract
Except if the collective agreement requires it and in certain specific cases provided for by law (part-time work, work at home in particular), the contract CDI is not not necessarily contract writing.
CDD contract
The contract CDD must obligatorily be the subject of a writing. An employee recruited on a fixed-term contract who does not receive a contract is considered to be on a permanent contract.
The CDD contract must be returned within two working days of hiring.
(Cf. Article L 1242-13: “The employment contract is sent to the employee, at the latest, within two working days of hiring”.)
In this regard, a case law of October 29, 2008 indicates that the day of hiring is not counted in 2 days working hours to be observed.
Little reminder: one week counted down:
- in calendar days contains 7 days;
- in working days 6 days (excluding Sunday);
- in working days 5 days (excluding Saturday and Sunday).
Example
- you hire an employee on a Saturday, you must give him the contract on Tuesday at the latest;
- if the contract is handed over on Wednesday, the contract will be reclassified as a permanent contract.
Content of contracts
CDI contract
For a CDI contract, there is no legal presentation and the clauses appearing therein are not limited. It is therefore up to the employee and the salaried employee to determine the clauses of the contract, subject nevertheless to including the mandatory clauses and not to integrate the prohibited clauses.
The mandatory clauses are the following :
- identity of the parties;
- workplace, in the case where the employee is mobile, the contract must mention that the employee will have to travel, specifying the terms;
- the title, rank and a summary description of the work;
- start date of the contract as well as the duration of the trial period (if planned);
- the daily or weekly duration of work as well as the working hours;
- the remuneration, the frequency of payments, the length of the notice period, and the procedures for allocating and determining paid annual leave;
- collective agreement and applicable collective agreements.
The prohibited clauses are those that are:
- contrary to public order and the provisions of the labor code;
- discriminatory, e.g. sex-related clauses;
- less favorable to the provisions of the convention and collective agreements.
CDD contract
The content of the contract CDD is a lot more regulated by lawhere are some mandatory clauses:
- precise definition of the reason for the contract, care must be taken to indicate only one reason;
- name and qualification of the absent employee in the event of a fixed-term contract concluded for replacement;
- expiry date of the term when there is a specific term;
- minimum duration if it is a CDD without a precise term (for example the CDD concluded for replacement);
- designation of the workstation;
- title of the collective agreement;
- amount of remuneration and various components;
- name and address of the supplementary pension fund;
- the trial period, please note that there are special conditions for the trial period of a fixed-term contract.
It should be noted that in the absence of one of the obligatory mentions, the CDD is automatically requalified in CDI.
Some clauses are considered optional For example :
- contract renewal clause;
- contact details of a provident fund.
Trial period in both types of contracts
There are common notions to the two types of contract :
- the trial period is used by the employer to test the capacities of his employee, and for the latter to know if the functions occupied suit him or not;
See Article L 1221-20 of the Labor Code.
The trial period and its possible renewal are not presumed and must be mentioned in the employment contract.
CDI contract
Since the LMMT law (Labour Market Modernization) of 25 June 2008, a legal trial period in CDI is established.
- the new provisions concerning the trial period are established in the following articles of the Labor Code;
See Articles L 1221-19 to 1221-26.
- these new provisions apply to all contracts entered into since June 27, 2008.
When the trial period is expressed in weeks or months: the count is made in calendar weeks Where calendar months.
When the period is expressed in days: the count is made in calendar days.
Example
Trial period of 2 months which begins on June 15, 2012, renewed for an equivalent period, ends on October 14, 2012 at midnight;
Trial period of 45 days which begins on July 1, 2012 and ends on August 15, 2012 at midnight;
When a period normally expires on a Saturday, Sunday or public holiday, it is not extended until the next working day.
CDD contract
The trial period of a contract CDD obeys specific rules, its duration has not been modified by the LMMT law.
The employer should be aware that the trial period may be prohibited by certain collective agreements.
The duration of the trial period is provided by article L1242-10 of the Labor Code.
The maximum duration is:
- one month at most for one CDD more than 6 months;
- for contracts of 6 months at mostthe period is limited to 2 weeks at most, up to this limit, of one trial (working) day per working week.
Example
Contract 4 week CDD gives a trial period of 4 days max.
If the CDD is without precise term: “the trial period is calculated in relation to the minimum duration of the contract”.
See Article L. 1242-10 of the Labor Code.
When the trial period is expressed in days, it is counted in calendar days and not in working days.
There is therefore no reason to exclude public holidays and rest days (Court of Cassation, June 29, 2005).
Our tips:
Small memory device to remember the countdown of the days of the week:
- the count in working days corresponds to 5 days, i.e. the number of letters in the word “open”;
- the count in calendar days corresponds to 7 days, calendar as “calendar”;
- the count in working days is therefore between the two methods, i.e. 6 days a week.