Detached workers' regulations in France have been tightened up, and may yet still apply to the UK even after Brexit.
As is well known, within Europe a set of rules applies to ‘protect’ workers who may be posted abroad by their employer on a temporary basis.
Within Europe there are around 2 million 'posted' or 'detached' workers.
In addition to the rules framework within Europe, France has agreements with over 40 other countries, under which the employee continues to be covered by the social security system of their country of origin. These countries include Canada, USA, India, and several countries from South America and Africa. There is also a bilateral agreement with the UK governing Jersey and the Isle of Man.
At EU level, the regulations date back to 1996 and provide that posted employees who remain employees of their home company and subject to the law of their home country, nevertheless continue to benefit from a key rights which are in force in the host Member State where the task is performed. These include maximum working periods, minimum annual leave entitlements, minimum wages, and health and safety at work regulations.
Although, strictly speaking, these European regulations may well not apply to the UK after Brexit, it is highly likely that there will either be strong convergence on a bilateral basis, or that the arrangements will be maintained as part of the Withdrawal Agreement. Separate regulations concerning medical cover and social security obligations are unlikely to apply, although until the terms of departure are clear this remains uncertain.
There has been considerable controversy within Europe (and particularly within France) about these regulations, with many trade associations complaining of ‘social dumping’ due to a concern about a lack of respect for the principle of equal pay for equal work and the fact that the employer does not pay the substantial employment based social security contributions.
As a result, in March 2016 the European Commission proposed revision of the 1996 Posting Directive to deal with these complaints.
After several years of difficult negotiations, the European Parliament approved revision of the 1996 rules with the Directive 2018/957, which entered into force on 29th July 2018.
Member States have until 30 July 2020 to enact this Directive into their own national legislation.
As one of the principal protagonists behind changes to the law, France has set about that task quickly, and on 1 August 2018 adopted the Loi Avenir professionnel, which contained with it a transposition of the Directive into French law.
Implementation of the law is still subject to publication of a decree, which has been held up pending a challenge made in the Constitutional Council.
The main elements of the new law are set out below. It is noteworthy that France was unable to persuade the European Commission that local social security contributions should apply, so the existing rules on this point remain in place.
Maximum Period of Posting
The maximum period of detachment in France will be 12 months, with provision in exceptional circumstances for this to be extended to 18 months. Until now the maximum period has been 24 months.
The law states that there must be equal pay for equal work in the same workplace - 'à travail égal, salaire égal au même endroit.'
Accordingly, the wages of posted workers must no longer only respect the legal minimum wage in France, but also be equal to the salary of local workers by integrating all the bonuses to which they are entitled.
If the employer in France provides accommodation for their posted workers, they are obliged to comply with French law, eg space, minimum standards.
There is an obligation on the employer to reimburse the employee’s travel, accommodation and food expenses, which cannot be deducted from their remuneration.
In order to enforce these regulations the employer is required to comply with notification procedures to the French regulatory authorities, and these procedures have been tightened up in recent years. These include that a certificate of secondment is in place.
The powers of workplace inspectors has been substantially increased, as has the regularity of inspections and the level of the penalties.