What is the impact of partial unemployment on the CSE budget?

As a reminder, the operating subsidy of the CSE (a social and economic committee) is equal to 0.20% of the gross payroll (0.22% in companies with more than 2000 employees).

 

Article L2315-61 of the Labour Code provides that the gross payroll is made up of all earnings and remuneration subject to social security contributions, pursuant to the provisions of Article L242-1 of the Social Security Code, with the exception of compensation paid on termination of an open-ended employment contract (the text refers to Article L741-10, for agricultural activities and sea fishing).

Article L242-1 of the Social Security Code refers to Article L136-1-1 of the same Code:

"The social security contributions due by virtue of affiliation to the general scheme,..., are based on income from activity and are taken into account for the determination of the base defined in Article L 136-1-1 (of the same code)...".

In making this reference, the Social Security Code provides that the basis for calculating social security contributions is made up of income from activity taken into account for the determination of the CSG base (Article L 136-1-1 of the Social Security Code).

The text includes in the CSG's base: "all sums as well as benefits and accessories in kind or in money, due in consideration or on the occasion of work, ..., whatever the denomination thereof and the capacity of the person attributing them, whether such attribution is direct or indirect".

However, the allowance paid to the employee on the occasion of the partial activity is exempt from social security contributions, even when the employer ensures a higher salary maintenance than provided by law. On the other hand, it is subject to CSG and CRDS.

 

Exempt from social security charges but subject to CSG, should the partial activity allowance be included in the basis for calculating the CSE's operating subsidy?

At the present time, we do not have any reference texts that would enable us to answer this question. It is therefore appropriate to proceed by way of comparison with the legal and jurisprudential material in our possession.

Prior to the reform of the Labour Code, the basis of calculation was initially determined by reference to the gross accounting payroll (account 641 of the chart of accounts), even though the Court of Cassation, in an important judicial reversal, had finally abandoned the accounting basis of account 641, to refer to the notion of earnings and remuneration subject to social security contributions pursuant to Article L 242-1 of the Social Security Code.

However, despite this change, the previous solutions adopted by the Court of Cassation seem likely to continue to apply.

In a relatively old judgment, the Court of Cassation was asked whether sums paid to employees who were undergoing training or placed under the activity suspension regime under the general steel industry social protection agreement should be taken into account in the calculation of the gross payroll.

In the case in point, the Court of Cassation held that the sums paid as state contributions were not included in the payroll, since they were not remuneration paid by the company.

The comments to this judgment emphasise that it would have been artificial to include in the calculation base the government aid, which in principle makes up for a deficiency in the company's own financial resources.

In its decision, the Court of Cassation therefore makes a distinction between the sums which remain definitively chargeable to the employer and those for which it only makes an advance payment, the definitive charge being payable by the government.

This solution can be extended to all situations in which the payment of an employee's remuneration is partially paid by the government, as is the case in the partial activity scheme. Therefore, only the sums remaining payable by the employer are accounted for.

The same reasoning was held by the Montpellier Court of Appeal in a judgment of the 18th December 1991.

In the present case, the question raised was whether or not, in the context of subrogation, the daily allowances paid to employees during a period of invalidity were included in the basis for calculation.

The court considered that the employer, by maintaining the entire salary during this period, was acting in substitution for the social security body, since he could obtain reimbursement of the daily allowances from the latter.
CA Montpellier 18-12-1991 n° 88-1665, Comité d'entreprise de la mutualité sociale c/ Caisse mutualiste sociale agricole de l'Hérault.

 

The same reasoning can be held, which aims at excluding from the base of the budget, the daily allowances paid by the social security, even if the employer temporarily maintains the salary (subrogation). These allowances are only an advance and the employer does not definitively bear the financial charge.

It seems to us that the same should apply to the partial activity allowance. Indeed, if the latter is paid by the employer, the latter may request reimbursement from the State services, which assume the final financial burden.

In conclusion, in the current state of the texts, it is therefore logical to consider that the partial activity allowance, in proportion to the cost borne by the State services, does not form part of the basis for calculating the operating subsidy of the CSE.

As regards the employer's contribution to social and cultural activities, if the method of calculation is different, it is based on the same base. The partial activity allowance must therefore, in our view, be excluded from the calculation base.

As a reminder, Article L2312-81 of the Labour Code stipulates that in the absence of agreement, the ratio of this contribution to the gross payroll may not be less than the same ratio existing for the previous year. If the ratio to the payroll is constant, the base is reduced by the partial activity allowance.

 

For example:

• Gross payroll 2019: 5 000 000 €
• Contribution paid by the company: €20,000
• Ratio of contribution to payroll: 5,000,000/ 50,000 = 250

 

• Gross payroll 2020 down due to partial activity: €4,800,000
• Contribution paid by the employer: 4 800 000 / 250 = 19200€

 

Taking into account the circumstances, legislative change may be possible.