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This is the last chance to thoroughly review the Loi Macron regulations and verify that they are properly implemented by the transport company. The French Parliament, by Law 2018-771 of 5 September 2018, introduced into the Labour Code high administrative penalties for infringements in the posting of workers. Employers can expect more frequent checks.

The updated Labour Code (Code du travail), in the version in force since 1 March 2019, provides for fines for each infringement in the posting of employees.

Higher penalties and accumulation of fines

The amount of the fine imposed may not exceed EUR 4,000 per posted employee and EUR 8,000 in the event of a second infringement within two years of the date of notification of the first fine. The greatest threat to employers is due to the fact that they post each of their employees in the same way, so if an infringement is found when verifying the posting of one of them, it will mean that the same infringement will apply to the others. The situation described above may lead to a cumulation of penalties imposed, i.e. receiving multiple fines of up to EUR 4,000 each for an infringement in the posting of one worker. To this end, the French Labour Code provides for a maximum total amount of the fine that can be imposed on the employer. Unfortunately, this does not improve his or her situation, as this amount cannot exceed EUR 500,000.

In assessing the amount of the fine, account should be taken of the circumstances and gravity of the infringement, cooperation with the inspection body and the financial situation of the employer. Here too, however, the employer is not in the best position, since the decision can only be challenged before an administrative court, and the limitation period for the administrative proceedings concerning the fine imposed is two years, counted from the date on which the infringement was committed.

Check the validity of documents

Stricter rules are particularly worrying because employers continue to make numerous mistakes in the posting of workers already at the stage of drafting certificates of posting. From our own experience, we know that there are errors in the certificates of posting generated in the SIPSI system by employers that concern the following:
  •         the minimum hourly wage,
  •         qualifications of the driver,
  •         the rates of allowances and lump sums paid for accommodation,
  •         the date of conclusion of the contract with the posted worker, although this is information which can be confirmed at any time by the employer on the basis of the contract stored in the personal file.

Employers also often forget about the expiry dates of the certificates, with the result that an employee performing a transport service in France does not carry a valid posting document. In order to eliminate such events, we have introduced constant monitoring of the period of validity of certificates of posting for all their employees and we recommend the introduction of such a check to businesses drawing up such acts on their own.

Photo: Wikimedia / David Monniaux CC SA 3.0

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