Since 30 July 2020, new rules on secondment in France have come into force with the decree of 28 July 2020 (in French). These rules, designed to combat unfair competition, are evolving and becoming stricter.
Extension of the rules applicable to seconded employees
With the adoption of this new decree, the legal and contractual provisions governing secondment have been tightened. Seconded workers will benefit from more advantageous pay rules. The reference to the minimum wage is a thing of the past, and from now on they will have to be treated on an equal footing with employees in the same sector of activity on French soil.
Secondly, until now, the legal provisions relating to secondment applied for a period of twenty-four months. From now on, these provisions will be limited to twelve months. After this period, i.e. from the thirteenth month onwards, an employer temporarily seconding an employee to France will be subject to virtually all the provisions of the French Labour Code. With the exception of the provisions relating to :
- the formation and performance of the employment contract ;
- modification of the employment contract for economic reasons ;
- secure voluntary mobility;
- transfer and termination of employment contracts;
- fixed-term contracts ;
- worksite contracts.
An extension of up to six months will be possible where justified by the situation. In this case, the employer will have to send a reasoned statement to the administrative authority. Failing this, the employer will be liable to an administrative fine of €4,000 per employee, rising to €8,000 per employee in the event of a repeat offence within two years, up to a maximum of €500,000.
Professional expenses paid by the employer
The basis of rights applicable to seconded employees has been extended to include the reimbursement of professional expenses incurred by seconded employees in the performance of their duties in terms of transport, meals and accommodation.
These expenses are covered by the employer and are paid in addition to remuneration.
In addition, it is compulsory for the company to cover these expenses, subject to the following cumulative conditions:
- it must be provided for by law or by collective bargaining agreement.
- The seconded employee must be moving to or from his usual place of work on national territory or when he is temporarily sent by his employer from this usual place of work to another place of work.
Posting in the temporary employment sector
New obligations have been introduced when temporary workers are seconded.
In the case of so-called «direct» secondment, a user company established in France that takes on employees seconded from a temporary employment agency (ETT) established abroad must inform the latter of the rules applicable in France, particularly in terms of remuneration, for the entire duration of the secondment.
In the case of so-called «indirect» secondment, the user company established abroad and carrying out an activity in France on an occasional basis will simply have to inform the foreign ETT of the rules applicable in France.
In the construction and public works sector, it is now the employer’s responsibility to make a declaration for each employee, with a view to obtaining a BTP card. This must now be done electronically. In addition to the information already obtained via the secondment declaration, the request must be accompanied by an identity photograph and, where applicable, the number of the work permit or residence permit valid as a work permit.
Declaration of secondment, the contractor’s obligations
The contractor or the contracting authority must ensure that :
- compliance with their obligations to exercise due care;
- report any accidents at work
- display the regulations on building and civil engineering sites.
In addition, as part of their obligation to be vigilant, principals or contracting authorities must systematically request an acknowledgement of receipt of the secondment declaration from their direct or indirect subcontractors, as well as from the TWAs seconding employees, before the start of each secondment. This declaration must be appended to the personnel register. In addition, if the foreign employer fails to provide this acknowledgement of receipt, the project owner or principal will have to make the subsidiary secondment declaration.
In the event of failure to comply with these obligations, the client or project owner will be liable to penalties.
Penalties for non-compliance with obligations
The Labour Code provides for penalties to be imposed on the company seconding employees, as well as on the project owner or principal in France, in the event of non-compliance with the obligations laid down for the secondment of employees.
In the event of non-compliance with the rules governing the secondment of employees, various penalties may be imposed:
- Prohibition or suspension of the service in the event of a serious breach of the rules on secondment.
- Administrative fines.
With its So Posting Worker online service, ASD Group can take care of all your obligations relating to the posting of employees. This platform enables you to manage all your administrative procedures, such as :
- SIPSI or BTP card applications ;
- managing the posting of employees
- storing mandatory documents;
- monitor secondment assignments;
- receiving information and reminders of any regulatory shortcomings in the posting process, to avoid any penalties.
Please note: these new directives on the posting of employees do not apply to the drivers of road haulage companies. Posting within the road transport sector is subject to its own legislation. It is subject to specific terms and conditions adopted by the European Parliament in July 2020.
