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24/11/2014 PROFILE > Chef d'entreprise
Labor Law: exceptions to the rule "silence of the administration constitutes approval"
Since 12 November, if a public authority does not respond within two months, silence shall be deemed as acceptance.
However, in certain legal domains, this rule will not be widespread. Indeed, three decrees appearing on 1 November 2014 on the Official Journal have listed the derogation procedures to the principle of "silence by the administration beyond two months shall be deemed as acceptance". Some of these for a different deadline, and others where this rule is not applicable.
Procedures in which the rule is applicablewithin 15 days:
- Authorisation to exceed the maximum daily term of work of 10 hours (article L. 3121-34 of the labor code) ;
- Derogation to the maximum daily term of work of 8 hours undertaken on night shift (article L. 3122-34 of same code) ;
- Derogation to the minimum term of daily rest of 11 hours(article L. 3131-2 of same code).
Procedures in which the rule is applicablewithin 30 days:
- Authorisation to exceed the maximum weekly term of work of 48 hours (article L. 3121-35 of the labor code) ;
- Individual derogation to the maximum average weekly term of work, of 44 hours over 12 weeks (articles L. 3121-36, R. 3121-27 andR. 3121-28 of same code);
- Authorisation to practice individualised hours (article L. 3122-24 of same code) ;
- Authorisation to work night shift: (1) substitution of the period of 21 hours - 6 hours (article L. 3122-29 of same code) ; (2) assignment of workers to night shift (article L. 3122-36 of same code)
- Authorisation and derogations for teamwork: (1) exceeding the maximum daily term of work of 10 hours for replacement teams (article R. 3132-12 of same code) ; (2) organisation of work continuously for economic reasons and weekly rest by rotation (article L. 3132-14 of same code) ; (3) use of replacement teams (article L3132-18 of same code) ;
- Young workers: (1) derogations to maximum daily working hours (8 hours) and weekly hours (35 hours) for work (article L. 3162-1 of same code) ; (2) derogation to the prohibition to work night shift for commercial and events establishments (article L. 3163-2 of same code);
- Derogation to the obligation to grant 2 consecutive rest days per week (article L. 3164-2 of same code).
- Derogations for apprentices under 18 years old: (1) maximum daily (8 hours) and weekly (35 hours) employment(article L. 6222-25 of same code) ; (2) prohibition to work nights (article L. 6222-26 of same code)
- Registration of parties for prevention of professional risks (article L. 4644-1 of same code)
Procedures in which the ruleis not applicable :
- Authorised conventional termination, termination of employment contract, interruption or non renewal of a temporary employment duty and transfer of company from protected employees (articles L. 1237-15,L. 2411-1, L. 2411-2, L. 2412-1, L. 2413-1 and L. 2414-1 of the Labor Code)
Occupational health: authorisation for dismissal, termination of a temporary employment contract and transfer (articles L. 4623-5, L. 4623-5-1 to 3 of same code) - Derogations: (1) to rules of use of individual auditive protection equipment where this protection is likely to lead to a greater risk than their use (article R. 4437-1 of same code) ; (2) to the values of maximum exposure to ionising radiation in the event of any exceptional exposure or emergency radiological situation (articles R. 4451-15 and R. 4451-94 of same code)
Sunday rest: temporary derogation granted by the Prefect (article L. 3132-20 of same code), extension of the temporary derogation and withdrawal of the extension to temporary derogation (article L. 3132-23 of same code), authorisation for weekly rest by rotation (article L. 3132-25-1 of same code) - Dispensation of a part of the application of rules to fight fires: (1) to the project manager at the time of designing the premises (article R. 4216-32 of same code) ; (2) to the employer for use of premises (article R. 4227-55 of same code)
- Approval: (1) economic, social and union training bodies (article L. 2145-2 of same code) ; (2) of the paid-leave fund for events (articles L. 3141-30 and D. 7121-39 of same code) ; (3) experts who may be called upon by the health and safety at work committee (CHSCT) (article L. 4614-12 of same code) ; (4) vocational training programmes funded by the State (article L. 6341-4 of same code)
- Performance of a survey to determine the representative nature of a union not affiliated to an organisation at national level (article L. 2121-2 of same code)
- Entry onto the list of job seekers (article L. 5411-1 of same code)