New provisions on the posting of workers
From 30 July 2020, due to the transposition of the EU directive 2018/957 of 28 June 2018, new rules apply to the posting of workers in France, as in the other Member States of the European Union.
These rules concern various matters:
- The extension of the “hard core”.
- The almost total application of the Labour Code from the 13th month of secondment.
- The reinforced application of the principle of equal treatment for seconded employees.
- The consecration of the principle of “Equal pay for equal work”.
- The strengthening of obligations for employers
Extension of the "hard core" employment regulations
The new rules consist in the extension of the so-called “hard core” which is now enforceable to the various secondments in labour law and that gathers the various provisions which must be complied during the period of the secondment. Among these rules, are the minimum pay, working hours and paid holidays for example.
Since 30 July 2020, and after a certain period of secondment, the “extended hard core” will have to be applied.
It consists in the enlargement of the “hard core” employment regulations and of the rules applicable to seconded employees. This “extended hard core” implies in particular the respect of the principle of equal treatment: “equal pay for equal work”.
Application of the Labour Code to posted workers from the 13th month of posting
Two periods can be distinguished :
- From the 1st to the 12th month, only the provisions of the ” hard core ” will apply.
- From the 13th month, the entire Labour Code will apply. We now speak of an “enlarged hard core”.
Thus, since 30 July, from a period of secondment of more than 12 months, the provisions of the “extended hard core” will have to be applied.
The 12-month period of secondment will be assessed from 30 July taking into account the period of secondment already completed in France. In addition, in the event of a replacement of a seconded employee by another seconded employee for the same job, the 12-month period is reached when the cumulative period of secondment of successive employees on the same job (same task at the same place) is equal to 12 months. It will be possible for employers to ask for an additional 6 months before applying these new rules if they make a reasoned declaration to the SIPSI before reaching the 12-month period of secondment. Flexibility is granted for secondments reaching 12 months between 30 July 2020 and 14 August, allowing employers to apply for an extension of the application of the “hard core” before 30 August 2020.
Consequently, from the 13th or 19th month, the rules of French labour law as a whole, with some exceptions, will apply to posted workers. The exceptions are the provisions linked to the conclusion and termination of employment contracts and company pensions as well as the non-competition obligation.
Enhanced application of the principle of equal treatment to posted workers
The “extended hard core” put in place with the reform implies in particular the respect of the principle of equal treatment.
The principle of equal treatment will be considered and monitored with the treatment of seconded employees compared to the treatment of the employees of a French company hired in the same branch of activity. Employees on secondment will therefore have to benefit from the provisions of the extended collective agreements applicable to them by virtue of their activity in France as it was already applicable before the transposition of these new provisions.
Consecration of the principle of "Equal pay for equal work"
Among the new rules enforceable is the remuneration. In fact, if previously employees on secondment had to benefit from a “minimum wage [and] salary accessories legally or conventionally fixed”, today the term “remuneration” includes this and conventional bonuses of any kind (except those established by collective company agreement). It is the total gross amount of the remuneration that will have to be taken into account in order to verify the compliance with the principle of equality.
In addition, the seconded employee will be entitled to the reimbursement of professional expenses such as transport, accommodation and meals, which are now part of the “extended hard core”.
Reinforcement of the obligations of the employers
Changes have also taken place for the monitoring of employers. A prior declaration of posting will still be mandatory on the SIPSI website, except for own-account postings and short-term services.
Two separate reporting requirements are put in place:
-When the user company is established outside France, it must first inform the foreign company of the posting and of the rules applicable in this situation (a list will be drawn up for this purpose by ministerial order). In the event of an inspection, the user company will have to justify by any means that it has fulfilled this obligation to provide prior information. The a priori declaration is therefore abolished in favour of an a posteriori verification.
– When the user company is established in France, it must directly inform the foreign company of the rules applicable to seconded workers in terms of remuneration.
In addition, the sanctions have been increased. The foreign user company will be fined up to €4,000 per seconded employee (€8,000 in the event of a repeat offence within 2 years) if it fails to demonstrate that it has fulfilled its information obligations.
The host company will also have to check that the home company complies with the applicable provisions. If, after been informed by the labour inspectorate, it does not enjoin the foreign company in writing to put an end to the situation, there will be financial solidarity between the host company and the home company in the event of a fine or a sanction.
The Direccte will also be able to prohibit the provision of a new service to a company that has failed to pay an administrative fine in connection with a posting, without waiting for a new service to be provided.
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What are the other potential impacts?
These changes will have no consequences in terms of social security or immigration, since these rules only concern labour law.
Thus, the rules applicable today in these matters will not change, in particular the maximum periods of secondment provided by European regulations or bilateral social security agreements and the duration of the “ICT Seconded Employee” residence permit.
International mobility and posting
The Ministry of Solidarity and Health and the Ministry of Labour have produced a legal guide providing information on labour law and social security law with regard to employees who are posted, employers who post employees and self-employed workers who go to work in Europe from France or to France from Europe.