French Order No. 2019-116 dated February 20, 2019 transposing Directive (EU) 2018/957 on posting of workers and implementing decree
Provisions applicable as of July 30, 2020
The provisions of the EU Directive and the French Order concern all posting of workers: posting carried out as part of service provision, posting within a group (intra-group mobility) and posting for an employer’s own account.
However, these provisions do not apply to posting of drivers in the road transport sector.
KEY POINTS:
Posting remains possible beyond 12 months but, after 12 months (or exceptionally 18 months), French legal and contractual provisions are almost all applicable to posted employees. Thus, the new regulation establishes a status of long-term assignees in French law;
The new regulation does not trigger any limitation regarding the possibility for the posted workers to remain affiliated with the social security schemes of their home country, subject to the conditions provided for by international agreements on social coverage and within the time limits set by the said agreements;
It should be recalled that the French Labor Code already provided for a “hard core” of rules applicable to all employees posted to France, mentioned under Article L 1262-4 of the Labor Code. In this sense, the EU Directive’s contribution is probably less significant in France than in other Member States, whose domestic law was less protective;
The main contribution of the new regulation is to clarify the notion of remuneration when it comes to treating the posted workers like other employees of the host company;
Obligations of information for temporary employment agencies and employer’s filing procedures are reinforced, to facilitate and improve the audits by the French authorities.
Reinforcement of rights applicable to posted workers
The new French regulation substantially modifies Article L.1262-4 of the French Labor Code, in order to enhance the principle of equal treatment, which is now based on a single definition of the concept of remuneration.
The rights resulting from the “hard core” rules stated under Article L 1262-4 of the French Labor Code, have been extended and enlarged to the global remuneration (not only a minimum amount of salary), equal treatment and reimbursement of professional expenses:
Definition of remuneration: The notion of “minimum wage [and] accessories of wage legally or conventionally fixed” gives way to the notion of “remuneration”, which is broader and includes conventional premiums of any kind, provided for by French law or extended French National Collective Bargaining Agreements (i.e. compulsory for all the companies in a professional sector – this excludes in principle premiums stated by company’s private collective agreement since posted workers do not belong as such to the workforce of the host company).
Principle of equal treatment: It comes to provide rights to long-term posted workers that are as similar as possible to those employees of a French company are entitled to, in the same branch of activity.
Reimbursement of professional expenses: The reimbursement of professional expenses incurred by posted workers relating to travel, meals and accommodation is now expressly included in the “hard core” provisions. These expenses shall be covered by the employer and are excluded from the amount taken into account for the assessment of equal treatment in terms of remuneration. Any premium paid to a posted worker and which purpose is not specified will now be considered as a reimbursement of expenses linked to the posting and, as such, will be excluded from the amount of the aforementioned remuneration if the employer cannot demonstrate that the said expenses have been covered.
What changes beyond 12 months (or exceptionally beyond 18 months) :
For posting exceeding 12 months, posted workers shall benefit from an extended “hard core“. As of the 13th month, foreign employers become subject to almost all provisions of the French Labor Code and extended French National Collective Bargaining Agreements, excluding those relating to: training, execution of employment contract and its modification for economic reasons, as well as those relating to the termination of employment contract of indefinite duration;
Possible extension of maximum 6 months: this extension shall be justified by the nature of the work to be completed and is subject to a prior declaration with supporting reasons to be filed via the SIPSI procedure.
- Failure to declare an extension could be subject to an administrative fine of up to Euros 4,000 per posted worker, and even to temporary suspension of the posting;
- For employees already posted to France on July 30, 2020 (date the new provisions entered into force), the 12-month threshold is assessed taking into account the posting period already completed;
- In case of substitution of a posted worker by another one on the same job, the 12-month period is assessed by cumulating the posting duration of the two workers;
This threshold has no impact regarding secondment in terms of social security. The durations provided for by bilateral agreements remain applicable.
Enhancement of information obligations for posting by a temporary employment agency
The French Order introduced in Articles L. 1262-2 et seq. of the French Labor Code, a new obligation of information in case of temporary work, in order to clarify, for both temporary employment agency and user company, the nature of their obligations and to ensure that the rights of posted workers are respected.
Practical implications for the companies
Identify the employees currently posted to France and who exceeded or are about to exceed the 12-month posting period;
Amend the prior declaration of posting for these employees via the SIPSI teleservice which requires an update of the declaration of posting every 6 months. The SIPSI online tool already enables to provide “supporting reasons for long-term secondment” for posting exceeding 12 months;
For ongoing postings, the updated SIPSI declaration cancels and replaces the previous one. It must be submitted no later than August 30, 2020, or even August 15, 2020 if the 12-month limit was reached from this last date
Review the employment contracts and appendices to ensure that the conditions of the French Labor Code and French National Collective Bargaining Agreements are respected, particularly with regard to the obligation to provide remuneration equal to the one paid to local employees, excluding professional mobility costs;
Check whether the French local conditions are more favorable than the conditions applicable in the country of origin or not: foreign companies are subject to French legal or contractual remuneration only when the contractual remuneration paid to the posted worker in his home country is less favorable than in France. The hard core of French rules cannot be applied to the detriment of the employee;
Take the opportunity to check the validity of social security coverage certificates and apply for their renewal if need be.