Law no. 1.547 of 22 June 2023 on the donation of leave published
Law no. 1.547 of 22 June 2023 on the donation of leave (JDM no. 8649 of 30 June 2023), resulting from Bill No. 1073 (2022-17 of 1 December 2022) tabled on 5 December 2022 and voted on 15 June 2023, allows a private sector employee to donate one or more days of rest to a colleague who is coping with a death or another particularly serious family situation.
The implementing rules will be specified by Sovereign Order.
It should be noted that the Commission des Intérêts Sociaux et des Affaires Diverses (CISAD) has amended the bill in order to harmonise the existing system of donated leave applicable to State and Commune civil servants with the new system of donated leave applicable to private sector employees (amendment of article 49-2 of Law no. 975 of 12 July 1975 on the status of State civil servants, and of article 45-2 of Law no. 1.096 of 7 August 1986 on the status of Commune civil servants).
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In the public sector, since Law No. 1.527 of 7 July 2022 amending Law No. 975 of 12 July 1975 on the status of State civil servants, a civil servant may (at his or her request and anonymously) give up all or part of his or her leave without compensation for the benefit of another civil servant or contractual State employee who is caring for a sick or disabled child or a child who has suffered an accident, or who is assisting a disabled relative or a relative who is losing his or her autonomy (Article 49-2).
This possibility is also open to civil servants of the Commune in favour of another civil servant or contractual agent of the Commune since Law No. 1.538 of 16 December 2022 amending Law No. 1.096 of 7 August 1986 on the status of civil servants of the Commune (Article 45-2).
Contractual State employees may also donate leave to another contractual employee or civil servant under the same conditions since Sovereign Order No. 9.640 of 23 December 2022 laying down general provisions of a statutory nature applicable to contractual State employees (Article 74).
In the private sector, prior to this law, only the banking sector provided for the granting of leave (Amendment no. 22 of 7 July 2021 to the Monegasque Collective Labour Agreement for bank employees).
The legislator has taken into account the wish of the Economic, Social and Environmental Council (Conseil Economique, Social et Environnemental) to generalise voluntary, anonymous and disinterested donation of leave to all employees in the private sector (wish no. 2021-795 of 10 November 2021).
It also sought, i.a., the opinion of the High Commission for the Protection of Rights, Freedoms and Mediation (in the light of the right to leisure and relaxation enshrined in the International Covenant on Economic, Social and Cultural Rights and articles 23 to 25 of the Universal Declaration of Human Rights relating to labour law) and the opinion of the Fédération des Syndicats de Salariés de Monaco (F2SM).
The Explanatory Memorandum refers to the French law from which Monegasque law draws its inspiration. The right to leave was established in France by the “Mathys” Law No. 2014-459 of 9 May 2014 allowing the donation of days of rest to a parent of a seriously ill child (Articles L.1225-65-1 et L.122565-2 Code du travail), then Law No. 2018-84 of 13 February 2018 extended the donation of leave to situations of disability or loss of autonomy of a close relative, and opened up the scheme to public sector employees (Article L..3142-25-1 Code du travail).
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SUMMARY - PRIVATE SECTOR
An employee has the possibility at her/his request (voluntary) and in agreement with the employer (assessment of the appropriateness of the gift of leave in relation to the availability of his teams) to give up without its identity is made known to the beneficiary (anonymity vis-à-vis the beneficiary) and without consideration (disinterestedness), all or part of his untaken days of leave for the benefit of another employee of the company who is in one of the following situations:
- the beneficiary employee exercises parental authority [addition of CISAD to include a parent who does not live with the child or does not have actual and permanent custody of the child, e.g. a divorced parent with alternating custody] or assumes the responsibility for a child suffering from an illness, a disability or a particularly serious accident making a sustained presence and constraining care indispensable;
- death of the beneficiary's child under the age of 25, or of the beneficiary's spouse or partner in a "common life contract;" (contrat de vie commune); or death of the child under the age of 25 of the said spouse or partner living under the same roof as the beneficiary [added by CISAD, based on the French provisions of Article L. 1225-65-1 Code du travail ];
- or she/he is helping a close relative suffering from a particularly serious loss of autonomy or having a disability (when this relative is, for the beneficiary of the donation, one of those defined by sovereign order).
— Terms and conditions
• The employee can only give up her/his annual leave “for its duration exceeding twenty-four working days”, i.e. only his fifth week of paid leave (and not the first four). This limit is intended to reconcile the giving of leave with the public policy rules on the right to paid annual leave.
The Explanatory Memorandum refers to French and European Union law (Article 7 (1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time) “to which the Labour Court refers in its decisions”, in order to consider that “the fifth week is an additional week, which may benefit from a more flexible regime”.
• The employee who is the beneficiary of one or more days assigned will be entitled to maintain her/his remuneration during the period of absence, which will be treated as a period of actual work for the purpose of determining the rights that the employee has by virtue of his or her seniority, and will retain the benefit of all the advantages acquired before the beginning of the period of absence.
Thus, the compensation for the leave given will be calculated on the basis of the beneficiary employee’s salary. The beneficiary employee will retain his or her remuneration regardless of the salary level of the colleague who donated the leave.
The employee will retain his or her seniority at the time of going on leave, and the period of absence will be taken into account to increase his or her seniority time.
On the other hand, the period of absence for donated leave will not be considered as actual working time for the determination of the duration of paid leave (unlike the case of family support leave where this is the case).
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