In a context where manpower is sometimes difficult to find on the national territory, many French companies decide to use foreign temporary employment companies so that they post employees to France.
While the process is fully authorized, it is subject to strict rules that combine the obligations applicable to the posting of temporary workers within the EU (1°/) and the more general rules relating to the lending of labour (2°/).
In addition to this multiplicity of rules, there are particularly significant sanctions in this area, ranging from significant financial sanctions to prison sentences, including the ban on applying for public contracts.
We also draw the attention of companies that act as subcontractors since, depending on the irregularities for which they may be responsible in terms of the posting of temporary workers, the responsibility of their ordering client is also likely to be incurred, which may, regardless of the consequences given to the proceedings of the original contractor, may weaken commercial relationships.
In order to avoid any difficulty, it is therefore essential to check a certain number of points before using a foreign temporary company and to set up internal processes to systematically ensure the regularity of each posting of temporary workers. Checklist of the essential points to respect when posting intra-European temporary workers.
1°/ On the rules concerning the posting of temporary workers:
- ensure that the foreign temporary company is real Registered in her country of origin: ask her for a copy of her Kbis extract by verifying that she is authorized to carry out a temporary work activity;
- Ask him for a copy of his compliant financial guarantee to the provisions of articles L. 1251-49 and following of the Labour Code: either an autonomous guarantee taken out for the benefit of a specialized body, or proof that the social system in the country of origin offers an equivalent level of guarantee. Attention, the administration adopts a particularly strict position in this area by frequently considering that in the absence of adequate financial guarantees for the temporary employment company, the user company is guilty of the offence of lending illicit labor. Although this position is questionable and should in our opinion be contested, it is preferable to anticipate the problem by requesting, prior to the start of the service, the communication of compliant guarantees.
- request a copy of prior declarations of secondment and employment contracts concluded between the foreign temporary employment company and the employees whose posting is envisaged (Articles L. 1262-2 and following of the Labor Code);
- request a copy of all A1 certificates attesting to the regularity of the detachment. As a reminder, the issuance of an A1 form by the country of origin constitutes a presumption of regular posting and the French Labor Inspectorate cannot question it unilaterally even in the event of suspicion of fraud (CJEU, April 27, 2017, C620/15);
- request a copy of the appointment of the legal representative in France : in this respect, it is necessary to verify that all the mandatory information provided for in article R. 1263—1 of the Labor Code appear in the declaration. We draw your attention to the fact that this designation cannot be unilateral and must be expressly accepted by the representative in France;
- For companies in the construction sector, ensure that the interim company has completed the procedures to obtain the BTP card and that the employees are in possession of the relevant supporting documents when they arrive at the construction site. For more information, you can go to our dedicated article by clicking hither
2°/ On the rules relating to the loan of labor:
The Temporary work should not be confused with a subcontract. In the context of a temporary employment relationship, the contract concluded between the temporary employment company and the user company consists in the provision of staff. As a reminder, the use of temporary employment should not be aimed at coping with the normal and permanent activity of the company (L. 1251-5 of the Labor Code).
Conversely, a subcontracting contract consists in the provision of a specific service, often carried out independently by the service provider with its own equipment (Cass. Crim. March 19, 2013, no. 11-86552).
In order to avoid any confusion, it is preferable to regularize a provision contract (we recommend a framework contract and contracts specific to each employee) in order to:
- to recall the general rules applicable to the posting of temporary workers in order to make foreign companies aware of the scope of their obligations;
- to provide a Hourly remuneration of temporary workers and to avoid any remuneration per task or per square meter and to ensure that the remuneration of temporary employees is not too low in that it should not result in remuneration below the applicable legal and conventional minimums;
- To act the provision of work equipment (possibly excluding safety shoes) by the user company;
- to justify unsuccessful job searches if the hourly cost of posted temporary workers is less than the cost of an unposted temporary worker.
- Ofintegrating temporary employees into the staff of the user company and not to form an autonomous and separate team. It is therefore preferable for the user company to control the working time of posted temporary workers;
- To recruit temporary employees who do not benefit from a particular skill that is not mastered by the user company, so that they remain integrated into the teams and do not work independently. Otherwise, a subcontracting contract should be preferred (CA Paris, September 13, 2007, No. 05-16251).
EVERGREEN LAWYERS is in a position to assist you in setting up and managing your relationships with foreign temporary employment companies, as well as in connection with inspections by the Labour Inspectorate or in case of potential litigation.
Do not hesitate to contact us.
