Changing cleaning contractor: what you need to know about staff transfer

You are a property manager, a building manager or in charge of facilities, and you are thinking of changing cleaning contractor. In the cleaning industry, such a change has a particular feature: the collective agreement requires the new contractor to take on, subject to conditions, the operatives assigned to your site. Here are the rules, the timetable to plan for and the pitfalls to avoid.

The principle: the job follows the site

The French national collective agreement for the cleaning industry (convention collective nationale des entreprises de propreté et services associés, IDCC 3043) provides, in its article 7, for job protection for employees when the contractor changes. In the industry it is still often referred to as "annexe 7".

These rules apply when two cleaning companies succeed each other for work carried out on the same premises, following the end of a commercial contract or a public procurement contract. They also apply to subcontracting. The new contract must have the same purpose and cover the cleaning of the same premises.

In that case, the incoming company must take on all employees assigned to the contract who meet the conditions. This is not left to its discretion.

Which operatives are covered?

According to the French Ministry of Labour's guidance on this collective agreement, the employee must meet the following conditions:

• Their job: belong to one of the first four levels of the operations job family (cleaning operative, qualified operative, highly qualified operative, team leader) and spend at least 30% of their total working time for the outgoing company on the site; or belong to the first two supervisor grades (MP1, MP2) and be assigned exclusively to the site.
• Their contract: hold a permanent contract (CDI), or a fixed-term contract (CDD) to replace an absent employee who meets the conditions.
• Time on the site: have been assigned to it for at least six months on the date the commercial or public contract expires.
• Attendance: not have been absent for four months or more on that date. Employees on maternity leave are taken on whatever the length of their absence.
• Their situation: be legally entitled to work under the rules on foreign workers, not have been declared permanently unfit for the job, and not be working their notice.

Employees who do not meet these conditions remain employed by the outgoing company.

What the employee keeps

The incoming company draws up an amendment to the employment contract stating the change of employer and carrying over the terms of the contract. The employee keeps the gross monthly pay corresponding to the hours usually worked on the site, together with pay elements paid at fixed intervals. From the first day, the employee then comes under the new employer's collective terms and conditions.

As for paid leave, the outgoing company pays for leave already accrued; the incoming company grants employees who request it the corresponding time off.

Two points of nuance. First, the outgoing company may keep some or all of the operatives, with their agreement, provided it informs the incoming company when it sends the staff list. Second, outside the statutory transfer provided for by article L. 1224-1 of the French Labour Code, the Cour de cassation holds that a change of employer organised by a collective agreement requires the employee's express consent.

The transfer of an employee representative requires the prior authorisation of the labour inspector, which can take time.

The transfer timetable

The client plays no part in the transfer of employees, other than passing on the two companies' contact details. The steps then take place between them:

1. The incoming company makes itself known to the outgoing company as soon as it has its contact details.
2. The outgoing company sends the list of staff assigned to the site, identifying those who are transferable, together with, in particular, the last six payslips, the employment contract and its amendments, the latest occupational health certificate and, where relevant, the work permit or the authorisation to transfer a protected employee. The information requested must be sent within eight working days of the incoming company's first contact.
3. The outgoing company informs each employee concerned in writing that they must report to the site on the day the contractor changes.
4. The incoming company gives the employee the contract amendment no later than the day work actually starts, or within the following eight working days if the deadlines could not be met.

The earlier you appoint the new contractor, the more smoothly these steps go.

What the client needs to plan for

Notice. Reread your current contract: term, expiry date, automatic renewal, notice period and how termination must be given. Three months' notice is common. For a residential building's property manager, the timing of the general meeting also needs to be taken into account if the decision rests with it.

A tender launched early enough. Allow time for site visits, quotes and the decision, then for the transfer itself. For a change on 1 January, a tender in the autumn is often already tight.

Comparable offers. Bidders need to price their offer taking account of the operatives to be taken on: hours, grades, length of service. Ask your current contractor for this information in anonymised form and include it in the tender documents. An offer built on far fewer hours than those in the contracts being transferred should raise questions. This is especially true for local authorities, where public procurement follows its own timetable.

A clear start date. The conditions (six months on the site, absences) are assessed on the date the contract expires. Set it in writing and give it to both companies.

Passing on contact details. Put the two companies in touch quickly. You do not need to collect staff files yourself: the outgoing company sends them to the incoming one.

Pitfalls to avoid

• Terminating too late. A miscalculated notice period delays the change by several months, or leaves too little time to organise the transfer.
• Changing the scope without realising. If you move premises, there is no succession on the same premises: operatives at the old premises only have priority for employment with the incoming company, on the terms it offers. If you bring cleaning in-house, or give it to a company outside the cleaning industry, article 7 does not apply; the question is then governed by the Labour Code, case by case.
• Forgetting long absences and employee representatives. An operative absent for four months or more stays with the outgoing company; an employee representative needs authorisation from the labour inspectorate. The staff actually transferred may therefore differ from the team you see.
• Neglecting the first month. The operatives stay, but supervision, products and sometimes methods change. Plan for frequent reviews at the start and an up-to-date written specification.

Preparing the change

• Reread the current contract and note the termination deadline.
• Update the written specification: zones, tasks, frequencies, hours.
• Ask your current contractor for anonymised information on the site's staff.
• Approach several companies, including a site visit.
• Give notice in the required form, then put the two companies in touch.
• Schedule a one-month review with the new contractor.

These steps tie in with those described in our article on renewing your cleaning contract.

How we approach a transfer

Atlantis applies the national collective agreement for the cleaning industry, including its staff transfer rules. When we take over a site, we draw up a written specification with you, zone by zone. The site's area manager carries out a check visit every month, an absent operative is replaced within 24 hours and we reply to every complaint within 48 hours. Our quote is free and drawn up after a site visit.

This article outlines the general framework; for advice on your own situation, speak to your legal adviser.

Sources

• French Ministry of Labour, Code du travail numérique: Transfert du contrat de travail : quelles modalités ? Peut-on refuser ? (IDCC 3043) (in French), updated 23 February 2024.
• DEETS Mayotte (regional office of the Ministry of Labour): Convention collective nationale de la propreté : transfert de marché et transfert de personnel (in French), October 2023.
• Légifrance: Convention collective nationale des entreprises de propreté et services associés du 26 juillet 2011 (in French), article 7.
• Cour de cassation, social chamber, 3 March 2010, no. 08-41.600 (employee's express consent to a transfer under a collective agreement).
• Cour de cassation, social chamber, 9 March 2022, no. 20-18.563 (contract covering the same premises).