The unions, which are contesting the reform of the calculation of unemployment benefit which came into force on October 1, played their last card on Monday, without much hope, before the Council of State, whose public rapporteur recommended the rejection of their requests. The highest administrative court examined on Monday “on the merits” the appeals of the unions and will issue its decision in the coming weeks. Responsible for enlightening the judges, the public rapporteur Marie Sirinelli has extensively detailed the various “criticisms” made to the reform to reject them one by one.
“Going up the slope of the rapporteur will be inconvenient”, conceded the lawyer of the CGT, Me Antoine Lyon-Caen, after having hammered at the hearing that this reform is “the most iniquitous of all the texts since 1958 on the unemployment insurance because it hits precarious people first”. At the center of the litigation, the new method of calculating the daily reference wage (SJR), the basis of unemployment benefit, which will penalize the compensation of job seekers alternating periods of work and inactivity.
In a context of recruitment difficulties, Emmanuel Macron estimated last week that this reform was “indispensable (…) to make the return to work more attractive in all cases”, the previous rules being able to sometimes make this ” permittance” that an activity continues part-time, for example. To remedy this, the 2019 reform provided for the SJR to be calculated by dividing the wages received during the 24 months before unemployment by all the days – and no longer only the days worked – between the first and the last day of employment. ‘job.
Mechanically, this greatly reduces the amount of the allowance (since the same salary is divided by more days) for those who do not work continuously. The Council of State had invalidated this measure in November 2020 on the grounds that it entailed “a manifestly disproportionate difference in treatment” between the unemployed, the first in a series of legal developments. But, despite these obstacles, the government has not given up on this “rhinoceros” text whose “hard skin disputes it with the obstinacy which underlies it”, noted the rapporteur.
No “disproportionate” difference
After consultation with the social partners, the executive issued a new decree at the end of March – the one contested at the hearing – which caps the number of days not worked taken into account in the calculation, which “significantly attenuates” these differences for Ms. Sirinelli. If, according to Unédic, several hundreds of thousands of claimants opening rights in the year following the application of the reform will receive a lower monthly allowance (by 17% on average), this remains “below the line of which would constitute a disproportionate difference in treatment,” she said.
Union lawyers insisted on the gap between the entry into force of the new method of calculation and that of the bonus-malus on companies (in seven major sectors consuming short contracts) which will have no effect on unemployment contributions than in September 2022. “With the SJR, the precariousness of job seekers is now, while for companies, the bonus malus is we don’t know when”, summarized Me Cédric Uzan-Sarano for the Unsa. The executive, which is counting on this measure to fight against the abuse of precarious contracts, replies that the observation period for companies to calculate this modulation started in July 2021.
Finally, if the savings expected by the reform (1.9 billion in 2022 including 800 million linked to the SJR, according to Unédic) go beyond those initially set by the government (between 1 and 1.3 billion), the rapporteur considered that “such a difference is not significant”, unlike the unions. The rest of the disputed reform, which passed the stage of the Council of State, will apply on December 1. It will be necessary to have worked six months instead of four to benefit from an unemployment allowance. The 30% degressivity (for unemployed people under 57 who have lost earnings of more than 4,500 euros gross) will apply to the 7th month and no longer to the 9th.