On 5th June, the French authorities published a new decree amending the rules on the posting of workers and tightening up the penalties for illegal work. The amendments to the provisions shall enter into force gradually between 6 June and 1 July 2019. They include amendments to the Labour Code, the Transport Code and other specific laws that refer to the process of posting workers.
The amendments mainly consist of an increase in sanctions for infringements of the posting of workers rules and the powers of the French labour inspectorate. The approach to customer due diligence when entrusting services to foreign employers posting workers to France will also be more restrictive. In addition, the scope of information to be provided by foreign employers to French institutions will be clarified.
Here are some of the most important changes in our opinion:
New exceptions to the application of part of the administrative procedures related to the posting of workers
Unfortunately, the waiver of the obligation to submit a declaration of posting and to appoint a representative does not apply to the occupational group of international drivers. Exceptions include artists, athletes, academics and trainees.
Amended sanctions for breach of the rules on posting / illegal work
The French legislator clarified that a foreign employer may be sanctioned not only by a temporary suspension of the provision of services but also by a temporary ban on the provision of services for up to two months. Before applying a temporary suspension sanction, the employer’s representative (after the amendment, either the employer or the employer’s representative) is asked to take a position on the infringements and the imminent penalty within 1 to 3 days of the notice. If the period or scope of clarification is exceeded, as, in the case of serious infringements, a penalty is imposed to temporarily suspend the ability to provide the service for up to one month. The decision shall contain a detailed statement of reasons and the manner in which it is to be appealed.
The requirement of due diligence of the customer when verifying the contractor
Until now, the customer, before the posting, should receive from his contractor a copy of the posting declaration from SIPSI and a copy of the document appointing the representative of the foreign employer in France. Following the amendment, the contractor shall provide a receipt from SIPSI and an honorary statement confirming that the contractor has paid, if applicable, the amounts due in respect of penalties that may be imposed for breaches of the delegation rules. The statement shall include the full name and company name of the contractor and the signature of his legal representative.
Changes in the scope of information provided by the employer in the posting declaration
The French legislator has ordered the scope of data provided in declarations. Particular emphasis was placed on the provision by the foreign employer of data on the hourly rate of remuneration for an employee during the period of his posting to France (instead of the gross monthly salary), indication of the customer’s data (including the customer’s VAT number) and ordering access to the employer’s representative during the service in France, also in the event of the presence of a manager (employer) or one of the posted employees during the provision of the service.
The requirement to present documents to inspectors without delay
The provisions of the Labour Code concerning the need to keep documents in the workplace or any other place at the employer’s representative and make them immediately available to inspection authorities on request have been amended. An exception to the principle of immediate submission of documents was introduced, i.e. the possibility of submitting documents within 15 days was introduced, but only in relation to selected groups of foreign employers (short-term provision of services, within the scope covered by separate regulations – amenities concerning, among others, sportsmen and sportswomen).
These are only selected and presented in a simplified way fragments of a complex and multi-faceted reform of French law.