Désinfecter le matériel d’endoscopie ne confère pas le grade d’OHQ

FlickR - Infirmier - Cyril CavaliéClassée « agent hôtelier spécialisé, groupe III », une salariée, relevant de la convention collective des établissements privés d’hospitalisation, de soins, de cure et de garde à but non lucratif (FEHAP), a revendiqué un salaire égal à celui des aides-soignantes ou des infirmières de son service, ainsi que la classification conventionnelle d’ouvrier hautement qualifié (OHQ).

Elle a fait valoir, à cet effet, que bien que n’étant pas titulaire du diplôme d’aide-soignante, elle effectuait des tâches de nettoyage et désinfection au service d’endoscopie, ce qui nécessite une formation spécifique et le suivi d’un protocole rigoureux, basé sur des instructions précises.

Etaient donc remplis, selon elle, les critères de la définition de l’OHQ, tels que décrits à l’annexe I de la convention collective ci-après exposée :

Annexe I. Classification des emplois et grilles de salaires. Article A1.1.2 (extraits) : « Ouvrier hautement qualifié (OHQ) – Niveau 1 : Ouvrier capable d’exécuter des travaux de haute qualité professionnelle exigeant des connaissances théoriques et pratiques appropriées et impliquant une part importante d’initiative et de responsabilité […]. En outre, l’OHQ des services d’orthopédie – Niveau I est capable de réaliser un appareillage complet comprenant les opérations de moulage, de fabrication, d’essayage et d’adaptation ».

Mais ce n’est l’avis ni de la Cour d’appel de Colmar ni de la Cour de cassation ((Cass. Soc., 24 juin 2009, pourvoi n°07-44.411, arrêt n°1339 F-D.)) :

« Mais attendu, d’abord, qu’en appréciant souverainement les éléments de fait et de preuve qui lui étaient soumis, la cour d’appel a constaté, que, pour complexes qu’elles soient, les tâches exécutées par Madame X au sein du service d’endoscopie, ne constituaient pas des travaux de haute technicité nécessitant une part importante d’initiative et de responsabilité ; qu’elle a pu décider, sans violation des dispositions conventionnelles, que les fonctions réellement exercées par la salariée ne pouvaient conduire à lui reconnaître les classifications d’aide-soignante et d’ouvrière hautement qualifiée ».

S’agissant de sa demande d’égalité de rémunération avec les aides-soignantes et les infirmières, elle a également été rejetée :

« Attendu, ensuite, qu’ayant relevé, d’une part, que la salariée, non titulaire d’un diplôme d’aide-soignante, n’avait pas qualité pour dispenser des soins aux patients, d’autre part, qu’elle n’accomplissait au sein du service d’endoscopie, que des tâches qui, bien qu’accessoirement exécutées par des aides-soignantes n’étaient pas réglementairement réservées au personnel médical, la cour d’appel a […] estimé à bon droit que Mme X qui n’exerçait pas un travail de valeur égale à celui des aides-soignantes ou des infirmières avec lesquelles elle se comparaît, ne pouvait revendiquer une rémunération identique ».

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