Since July 30, 2020, Ordinance No. 2019-116 transposing Directive 2018/957 of June 28, 2018 on posting has come into force. This ordinance is part of the general framework of the fight against social dumping and the desire of the European authorities to strengthen the rights of posted employees by aligning their status as closely as possible with employees in the host country.
First observation: the ordinance covers postings carried out in the framework of the provision of services, with the exception of road transport company personnel, who are expressly excluded from the scope of the Directive.
However, it should be remembered that 3 types of secondment of employees exist, in addition to the secondments of temporary employees:
- secondment carried out in the framework of the provision of services;
- the secondment carried out within a group;
- the secondment carried out on behalf of the employer.
However, and notwithstanding the specificities of each of these detachments, which correspond to very different situations in practice, the French legislator did not intend to distinguish according to the type of detachment.
Does this mean that intra-group postings and those made on behalf of the employer are also affected by the new provisions provided for in this ordinance? The answer is clearly yes, at least for the former, insofar as the Directive 2018/957 covers in particular intra-group secondments and secondments made on behalf of the employer0
All the more so as the Directorate-General for Labour has, in the New Instruction specific to secondments published on 19 January 2021, assimilated intragroup secondments to a sub-category of secondments carried out in the framework of the provision of services.
It should be noted that in the same Instruction, the DGT seems to consider that secondments made on behalf of the employer are on the other hand a separate category from secondments to provide services, which could therefore escape the application of this new core core.
In these conditions, and despite the clumsy wording of the abovementioned texts and their highly questionable nature, which will undoubtedly cause difficulties, caution, particularly in view of the severity of the supervisory authorities in the area of posting, is strongly recommended and the provisions of the ordinance should be applied to all posted employees, regardless of the type of posting.
In substance, the ordinance distinguishes between detachments lasting up to 12 months (1°/) longer term detachments (2°/).
1°/ The expansion of the “hard core” for detachments lasting up to 12 months
Article L. 1262-4 of the newly drafted Labour Code provides that employers posting employees in France must guarantee them equal treatment with employees employed by companies in the same branch of activity established on the national territory by ensuring compliance with legal and contractual provisions in the areas listed by the text (right to strike, safety, etc.).
In practice and for postings of up to 12 months, the ordinance requires employers to henceforth provide posted employees with:
1.1°/ Remuneration at least equal to the legal and contractual provisions of the State where the employee is posted.
As a reminder, remuneration is understood within the meaning of article L.3221-3 of the Labor Code in that it provides that : ” Compensation within the meaning of this Chapter is the ordinary basic or minimum wage or salary and all other benefits and accessories paid, directly or indirectly, in cash or in kind, by the employer to the employee by reason of the employee's employment. ”.
In other words, posted employees are subject to the collective agreements applicable to their employer's activity.. The remuneration to be taken into account is not only that of the base salary but also includes any increases for overtime, night work or even public holidays, as well as the various conventional bonuses (13th month, birth benefit, etc.) ;
1.2°/ Reimbursement of professional expenses corresponding to meal, transport and accommodation expenses.
In practice, these reimbursements were already provided by employers prior to the entry into force of the ordinance. However, it will be necessary to document the expenses incurred and reimbursed by the employee in order to be able to justify them, in particular to URSSAF, in the event of an inspection.
Note that this period of 12 months can be extended by 6 months.” if the performance of the service justifies it ”. The reason must be related to the service (delay due to bad weather, non-delivery of the required equipment, etc.) and the employer must then complete its prior declaration of secondment of the employees concerned by using the “SIPSI” tele-service, by indicating the duration of derogation desired and its reason.
2°/ The almost complete application of French labor law beyond 12 months
For so-called “long-term” postings (longer than 12 months), all of French law is applicable to posted employees.
In practice and in view of the already very broad scope of application of the “core” applicable to postings of up to 12 months, this comprehensive application does not significantly strengthen employers' obligations if the duration of 12 months is exceeded.
This is especially true since provisions relating to the formation and termination of an employment contract (which remain governed by the legislation of the country of origin), fixed-term contracts, or even provisions relating to the transfer of employment contracts are excluded.
Attention, in the context of the replacement of a posted employee at the same workstation, the 12-month threshold is assessed by combining the terms of the two posted employees.
Finally, and important clarification: this 12-month threshold has no consequences in terms of social security and maintenance of the legislation of the country of origin. Thus, the periods provided for in the bilateral agreements remain applicable to posted employees.
In conclusion, the entry into force of this Directive does not fundamentally revolutionize the secondments made in France, even if it marks a strengthening of the rights of posted employees. It is therefore necessary to be vigilant about the letters of secondment from employees and, in general, in the information mentioned in the prior declarations of secondment in order to ensure compliance with the contractual provisions.
All the more so as the Directorate-General for Labour published, on January 19, 2021, a Specific instruction for checks carried out concerning the posting of employees in France, recalling that during an inspection, the Labour Inspectorate may in particular obtain pay slips or any equivalent document attesting to remuneration and including details of remuneration (working hours, increases, holidays and public holidays, etc.).
The firm EVERGREEN LAWYERS is in a position to assist you in the context of the posting of your employees on French soil, do not hesitate to contact us.
