Social right. During her maternity leave, the employee receives, instead of her salary and under certain conditions, daily social security benefits. Many collective agreements provide for additional compensation, up to and including the maintenance of net salary.
The basic salary may be supplemented by various supplements for Sunday work or night work, for overtime, benefits in kind, but also bonuses or bonuses related to working conditions.
These additional wages, the fruit of the negotiation, can carry the most diverse names, correspond to recurring or particular situations and know various modes of calculation. If it is clear that because of the collective agreement the basic salary must be maintained during the maternity leave, what about these other elements of remuneration?
This issue was brought to court in the context of a dispute arising from the announcement of the closure of a branch of a company and a transfer of business to an Italian subsidiary. In order to put an end to it, some employees had obtained the payment of a "co-operation bonus", included in an agreement signed by the staff representatives. The bonus rewarded a job of training and transmission of the know-how of the employees of the branch to the employees of the buyer. It was subordinated to the actual cooperation of the employee in question with the teams of the buyer.
Faced with an employee who claimed the premium paid during her maternity leave, complaining of discrimination based on sex, the Court of Cassation rejected the argument. The employer could therefore legitimately consider that this bonus was not due during her maternity leave: the requirement of actual work was not fulfilled and there is no discrimination since the rule applies to any absent employee.
This judgment of the Social Chamber of the High Court of 19 September 2018 is in line with previous decisions, considering that the reduction or the abolition of the end-of-year bonus or attendance of an employee because of her absence for maternity leave was neither discriminatory nor unlawful, provided that all absences, except those legally assimilated to actual working time, entail the same consequences for its attribution.
Parental leave: what other countries do
Few countries have actually experienced parental income as such; most compensate birth-related leave (maternity and / or paternity leave) and help, more or less generously, the care of a young child (parental leave of education). Seven countries in the Union do not pay parental leave at all: the United Kingdom, Spain, Ireland, Greece, the Netherlands and Cyprus.
The Sweden is the country that best compensates parents: the parental leave entitles to a replacement income, corresponding to 80% of the previous salary, during the first thirteen months (the last three months are compensated about 500 euros each). The Swedish model is consistent with this notion of income: the latter is taxable and, in return, all the social rights of the beneficiary are maintained. He continues to contribute for his retirement, the period of leave is counted in the calculation of the benefits related to the seniority and he benefits from the guarantee of the return to his post.
If the stay-at-home parent falls ill, he receives a daily allowance and his sick days are not included in the parental leave. However, you must have worked at least eight months before the stop. "Parents who do not meet these conditions receive, for their part, a fixed compensation of about 18 euros per day. The terms and conditions of this leave are therefore a strong incentive to integrate into the labor market before having children.explains the doctor in sociology Nathalie Morel. In addition, Sweden has put in place incentives to encourage more men to use the leave: each parent is obliged to take at least three months to benefit from the rest of the parental leave.
Same logic Germany: if both parents take the leave (two thirds of the salary, capped at 1,800 euros per month), they are entitled to two additional months. A monthly "cook bonus" of 150 euros was also initiated in 2013 by the Conservatives to revive the birth rate, but it was invalidated in 2015 by the Constitutional Court, which ruled that the federal government had infringed on the prerogatives. regional states.
TheIceland has the most egalitarian model with a nine-month parental leave, one-third of which is reserved for the mother, one-third for the father and one-third shareable between the two, before the child's eighteen months, each part being lost if it is not taken by the recipient. He is paid at 80% for any salary below € 1,260 per month and 75% for higher salaries, with a ceiling of € 1,890 monthly.
In contrast to a social conception of parental income, and in a probably anecdotal proportion, a neocapitalist version has already been tested in the private sphere: in New York, some housewives would receive a "wife bonus" under their good management of the household budget or the quality of education provided to children and the ability of these children to integrate good schools. The United States is currently the only OECD country that does not even fund maternity leave.
Similarly, for the Court of Justice of the European Union (CJEU), "Workers can not usefully invoke profit" anti-discrimination rules of the European Union "To claim the maintenance, during their maternity leave, of their full remuneration as if they did, like the other workers, occupy their place of work".