Les agents hospitaliers s’occupant de polyhandicapés sont éligibles à la NBI

FlickR - Intégration - Jean-Marie HUETUne nouvelle bonification indiciaire (NBI) est attribuée mensuellement, selon le décret n°96-92 du 31 janvier 1996, à raison de leurs fonctions à plusieurs catégories de fonctionnaires hospitaliers, parmi lesquelles figurent les « agents exerçant en secteur sanitaire un travail auprès des malades des services ou des établissements accueillant des polyhandicapés […] » (article 2). Faute pour le législateur d’avoir fourni un lexique des termes et expressions employés dans son oeuvre réglementaire, c’est le Conseil d’Etat qui a dû expliciter l’expression « travail auprès des malades ». Aux termes de son arrêt du 9 décembre 2009 ((CE, 9 décembre 2009, Ridoux, n°308563.)) en effet, il s’agit :

« […] compte tenu de la nature des troubles dont sont atteintes les personnes physiquement et mentalement déficientes accueillies dans les établissements qu’elles visent, de toute tâche accomplie par le personnel hospitalier auprès de ces actes de leur vie courante, que ces tâches aient des finalités thérapeutiques, éducatives, d’hygiène ou d’assistance aux actes de la vie courante […] »

En l’espèce, plusieurs agents, membres de l’équipe éducative de la clinique des Campilles dépendant du centre hospitalier Léon-Jean-Grégory de Thuir ont saisi le directeur de cet établissement, par courrier collectif daté du 2 décembre 2002, d’une demande d’octroi de la NBI, laquelle s’est heurtée à une décision implicite de rejet.

Le tribunal administratif de Montpellier a jugé que le bénéfice de la NBI devait être réservé aux « agents assurant ou participant aux soins » des patients polyhandicapées et que cette bonification ne pouvait être accordée qu’aux infirmiers et aide-soignants exerçant dans un établissement ayant cette vocation. Ce faisant, les premiers juges se sont livrés à une lecture purement fonctionnelle et restrictive de l’article 2 du décret susmentionné. Or, l’agent à l’initiative de la requête exerçait la fonction de moniteur d’atelier, laquelle relève du personnel technique et non du personnel soignant. Il était donc évident que, au regard de l’analyse textuelle effectuée par la juridiction de première instance, l’agent considéré n’était pas fondé à demander le bénéfice de la NBI.

Estimant sans doute que cette lecture opérait une différence de traitement indiciaire injustifiée fondée uniquement sur l’appartenance à une filière (soignante, administrative, technique), le Conseil d’Etat a considéré que le texte ne faisait pas de distinction et que seule comptait la lecture matérielle, c’est-à-dire l’activité de toute nature exercée au service des patients handicapés.

On ne pourra que souscrire à cette décision qui fait preuve de réalisme et d’équité.

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