New rules governing the posting of workers in France

It must be noted that the provisions resulting from the transposition ordinance do not apply to road transport companies, which shall continue to be governed by the former provisions of the French Labor Code while awaiting the entry into force of the reform of the European road transport sector (known as the “Mobility Package“) adopted by the European Parliament on July 8, 2020.

• Clarification of temporary worker posting situations in France

Henceforth, the following case scenarios are governed by Article L.1262-2 of the French Labor Code on posting rules: (i) the situation where a company that carries out a temporary work activity established outside national territory temporarily seconds employees to a user company established on national territory; and (ii) the situation where this same company temporarily seconds employees to a user company that is established outside national territory and temporarily carries out an activity on national territory.

In application of the amended Article L.1262-2-1 of the French Labor Code, with effect from July 30, 2020 this second category of user company is now required to inform, prior to the posting, the temporary work company (i.e., the employer of the employee(s) posted to the former) “of its intention to second these posted employees to France“, as well as “the rules that apply to these employees” –these rules were listed and defined by Decree on July 28, 2020. In particular, this list comprises the information relative to the expected duration of the temporary workers’ posting in France, to the formalities to be fulfilled prior to the posting, and to the list of documents to be kept in France, as well as the content of the “core provisions” to be complied with throughout the posting, including the reference to the collective agreements and collective bargaining agreements applicable during the posting.

• Reinforced “core provisions” of law, collective bargaining agreements and collective agreements applicable to posted workers in France

Article L.1262-4 of the French Labor Code already provides for “core provisions” for which the rules of the host State –legal rules, as well as those of the collective bargaining agreement and the collective agreements applicable to the industry concerned– must be applied to the posted workers in the same conditions as for local workers.

This principle has been maintained and extended through the transposition of the June 28, 2018 Directive to:

• remuneration, in the broad sense, as defined by Article L.3221-3 of the French Labor Code, which not only includes minimum salary set forth by law or collective agreement (already stipulated in the core provisions), but also salary-related items also set forth by law or collective agreement. Equitable remuneration set forth by law or collective agreement thus includes salary, bonuses of all sorts, allowances and any other benefit paid, in cash or kind, based on the job position held;
   
• professional expenses, as the employer is henceforth required to ensure that the posted worker benefits from the same treatment as workers regularly employed in France in terms of “reimbursement of professional expenses incurred by the posted worker and corresponding to specific costs inherent to his/her duties or job, during the performance of his/her mission, in relation to travel, meals and accommodation“. Such reimbursement of professional expenses cannot be taken into account to determine if equality of remuneration is complied with, unlike lump-sum secondment allowances.

In order to avoid a circumvention of the distinction made between lump-sum secondment allowances taken into account as part of remuneration and expense refunds not taken into account as part of remuneration, the July 28, 2020 Decree specifies that when the employer does not substantiate the payment of all or part of the specific secondment allowance or of expenses effectively incurred as a result of the posting, the entire allowance must be considered a reimbursement of professional expenses and therefore be excluded from remuneration.

• Limitation of posting in time, with exclusive application of “core provisions“

The June 28, 2018 Directive created a new category of “long-term” posted workers: if the posting lasts more than 12 months, as of the 13^th month not only are the posted workers subject to the core provisions, but also to all the provisions of the French Labor Code applicable to companies established in France, with the exception of those regulating the performance, transfer and amendment of the employment contracts (except as regards rules on telework, which remain applicable) and the termination of indefinite-term and fixed-term employment contracts, as well as cheques and simplified working papers (chèques et titres simplifiés de travail).

The 12-month duration of the posting is assessed:

• on the basis of a given job position, and not per posted worker. Hence, in the event that a posted worker replaces another on a same job position, the duration of the posting will be calculated by adding together the duration of the posted workers having held the same job position;
   
• by taking into account the posting periods already carried out on the date of the Directive’s transposition, i.e. on July 30, 2020.

The last paragraph of amended Article L.1262-4 of the French Labor Code provides for the possibility of requesting an extension of the “short-term” posting period, with the application only of the core provisions up to 18 months (i.e., six months more), “where justified by the performance of the service” and “upon submitting a well-reasoned declaration to the administrative authority prior to expiry of the 12-month period“. This request must be filed via the SIPSI online service and must mention the length of the requested extension, together with the reason therefor.

As a transition, it is provided that where the length of the posting reached 12 months before July 30, 2020 or in the fifteen days thereafter, the extension can be sent up to August 30, 2020, knowing that the employer is considered as benefitting from this extension during that time frame.

• Mitigation of previously increased sanctions with notion of bona fide of the person having committed the breach

The June 4, 2019 Decree passed in application of the law no. 2018-771 of September 5, 2018 for the freedom to choose one’s professional future had notably increased the amount of the administrative fines in case of breaches of posting obligations (set at €4,000 per posted worker concerned and €8,000 in case of repeated offences within a period of two months) and had broadened the causes for sanction by way of fines as a result of the enactment (including, since July 30, 2020, non-compliance with the obligation to submit a well-reasoned declaration to request a posting extension over and above 12 months).

The Ordinance for the transposition of the June 28, 2018 Directive mitigates the increasingly heavy sanctions, by integrating the notion of bona fide of the person having committed the breach, in order to determine and individualize the amount of the administrative fines that can be applied pursuant to Article L.1264-3 of the French Labor Code.

• Adjustment of posting formalities

Various articles mentioned in the regulatory section of the French Labor Code relative to posting formalities were adjusted by the July 28, 2020 Decree, in order to take into account the evolutions resulting from the Ordinance for the transposition of the June 28, 2018 Directive and those linked to the SIPSI online service.

The main modifications include:

• replacing the obligation to provide a copy of the posting declaration to the prime contractor or the user company with the obligation to provide the posting declaration’s acknowledgment of receipt;
   
• adding the posting declaration acknowledgments of receipt to the host company’s staff register instead of copies of said declarations;
   
• giving the employer the possibility to cancel the posting declaration or to modify the posting dates directly via the SIPSI online service.

This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.