Foreign companies posting employees in France
Companies established outside France can temporarily second their employees to France. They must then comply with several mandatory conditions and formalities, and apply to posted employees the provisions provided for by French labor law in a certain number of matters.
Employers will find in this article all the useful information on the secondment of employees in France.
A. What is posting of employees?
The posting of workers consists of the possibility, as a foreign company, of sending employees to France on a temporary basis to carry out a temporary mission on behalf of the foreign company. The employer has several obligations to respect before the mission of his employee, in particular in terms of immigration,
labor law and social security.
Posting meets the condition of maintaining the initial employment contract between the employer and the employee and the existence between them of a working relationship, characterized by the maintenance of the relationship of subordination, the payment of remuneration and the performance of work on behalf of the employer (not on behalf of the French company receiving the seconded employee). The secondment of a worker is constituted when the employee usually performs his work “outside the national territory” for an employer established outside the national territory.
B. Prior declaration of posting of employees in France
An employer posting employees must provide the labour inspectorate of the place where the service is provided with a prior declaration of posting before deployment begins in France using the SIPSI internet portal. If the service is performed in several locations, it is sent to the labour inspectorate of the first place
in which that service is provided. If the posting is cancelled or the original dates of the posting are changed, the employer is required to revoke or amend its prior declaration using the SIPSI teleservice.
Furthermore, if the duration of the posting is greater than 12 months, an employer who wishes to derogate from the application of the status of long-term posted worker (see ‘Posted workers : your rights’) for a maximum duration of 6 additional months has to supplement the prior declaration of posting of the
employees concerned, using the ‘SIPSI’ teleservice, and state the duration of the derogation requested and the grounds (for example, site delay due to bad weather, non-delivery of necessary equipment, etc.).
These steps must be taken before the posting reaches the 12-month mark. Failure to do so will mean that, with effect from the 13th month, all labour and employment conditions laid down in statutes and agreements (generally applicable collective agreements) applicable to workers employed by undertakings established in France will apply, with the exception of those on the conclusion and termination of the employment contract and on supplementary occupational pension schemes (Article L. 1262-4 II of the Labour Code1). In the event of replacing a posted employee by another posted employee in the same job, the duration of 12 months is reached when the cumulative period of the posting of the successive employees in the same job (same task at the same place) is 12 months.
The posting declaration completed on the SIPSI portal enables companies to appoint their representative.
The declaration of posting must contain a lot of different information depending if they are made for intra-group provision of services and posting or if they are made for the supply of interim employees by a temporary employment agency.
Please note that if the prior declaration of posting is not sent via the SIPSI platform, the employer may receive a fine of up to €4,000 per posted worker (€8,000 in case of reoccurrence within a period of two years) with a total limit of €500,000 (article L. 1264-3 of the Labour Code2).
C. Appointment of a representative on French soil
The company must appoint a representative present on French soil for the duration of the service who will perform the employers’ obligations on his/her behalf.
The declaration made on the SIPSI internet portal shall constitute the designation of the representative. That designation contains the following information, translated into French:
➢ Name or business name as well as, in the case of a specially designated agent, its SIRET number;
➢ Their contact details (email address and telephone number);
➢ Indication of the place where the documents that must be kept at the disposal of inspectors are held or the rules governing access to those documents.
Prior to this, the company posting employees will need to obtain the representative’s agreement to being appointed to fulfil these duties.
The company representative has a key role and many responsibilities.
For the entire duration of posting, the company representative posting employees in France acts as a liaison with the Labour Inspectorate’s inspectors (but also with the judicial police, tax and customs authorities and social security bodies) and is in charge of ensuring that certain documents are made available to inspectors either in paper or electronic format.
There are no specific conditions as regards the representative’s capacity: The representative can be any person capable of carrying out this task (presenting documents and communicating with inspection officers). As such, the representative can be the client or even one of the posted employees (the person chosen must be easily reachable by email or telephone).
It is important to underline that the representative’s liability cannot be incurred in the employer’s place for the obligations falling on him. However, the representative is responsible for any offences that he may personally commit, such as the offence of preventing a labour inspection officer from fulfilling their duties (Article L. 8114-1 of the Labour Code3 for example).
D. Employers’ obligation to the Labour Inspectorate
The Labour Inspectorate is the inspection body whose main purpose is to ensure compliance with labour law in France.
The Labour inspector has the right to enter establishments, premises in which home workers perform works and workers’ collective housing (save for home work carried out in inhabited premises, without the authorisation of the individuals occupying said premises).
He is entitled to interrogate employees (and any persons on the inspection site) in order to collect personal information (identity, place of residence, etc.) and information on working and posting conditions.
Where a violation is found, he may draft a report which is sent to the public prosecutor. He may also observe a breach of obligations relating to posting and suggest that an administrative fine be issued by the competent regional director. He informs the person concerned of the events likely to constitute a criminal offence or those which may result in an administrative fine as well as the penalties incurred.
In addition to this general obligation, and to enable the labour inspectorate to ensure compliance with posting rules documents in French (with the amounts converted into Euros) listed by the Labour Code must be provided without undue delay at the Labour Inspectorate’s request.
As listed in this article, posting employees in France may be an administrative complex task with many different declarations to be made and legal obligations to fulfill. If you need assistance to help you with all these processes, please feel free to contact us.