After 2 years of bitter negotiations, EU member states have finally agreed to review the rules on posting.
Employers concerned will need to be particularly vigilant regarding the changes brought about by this new directive, which has been deferred.
The text, published in the EU Official Journal on July 9, 2018, will come into force on July 29: it nevertheless gives member states 2 years, i.e. until July 30, 2020, to transpose its provisions into national law.
Maximum length of secondment and new sources of applicable law.
The new directive introduces a maximum posting period of 12 months, with a possible extension of 6 months: a maximum of18 months.
Beyond this maximum period, posting is considered long-term, and posted workers will be subject to all the rules governing working and employment conditions in the country where they work.
In practical terms, this means that all local labor laws will apply to long-term secondments, albeit with a few exceptions. In France, employees seconded beyond the maximum duration will henceforth benefit fully from the provisions of the Labor Code, national interprofessional agreements and branch collective agreements.
By way of exception, rules governing the conclusion and termination of employment contracts, and provisions specific to company agreements, will not be affected.
ATTENTION : To avoid any abuse of the law, the directive stipulates that if an employer replaces a posted worker with another to carry out the same task in the same place, the posting period of each worker must be added together to verify the maximum posting period.
More equal pay for posted and local workers
Until now, in terms of remuneration, the 1996 directive required Member States to guarantee posted workers the minimum rate of pay applicable in the host country.
In future, to limit social dumping, posted workers will benefit from the principle of equal treatment in terms of pay.
They must be remunerated in the same way as employees doing the same work in the country of secondment.
The Directive also clarifies the scope of this equal treatment, pointing out that the notion of "remuneration" includes all elements of remuneration made compulsory in the host country by laws, regulations, interprofessional agreements or branch collective agreements.
NOTES : Reimbursements for expenses related to the secondment (food, travel, accommodation), will not form part of the remuneration.
A "hard core" of labor law strengthened for posted workers
Posted workers already benefit from certain labor law provisions applicable in the host country. Until now, these provisions covered :
- minimum wage rates, including overtime rates;
- maximum work periods and minimum rest periods ;
- minimum paid annual leave ;
- safety, health and hygiene in the workplace;
- working and employment conditions for pregnant women, women who have recently given birth, children and young people;
- equal treatment for men and women and non-discrimination ;
- or the conditions under which workers are made available, particularly by temporary employment agencies.
In future, the following provisions will also apply to them:
- accommodation conditions for workers when the employer offers accommodation to workers away from their usual place of work;
- allowances or reimbursement of expenses to cover travel, accommodation and food costs for workers who are away from home for professional reasons(this point only concerns expenses incurred by posted workers when they have to travel to or from their usual place of work in the host country, or when they are temporarily sent by their employer from this usual place of work to another place of work).
In all these areas, posted workers must be treated equally, not only in accordance with the rules laid down by law, but also with those set out in interprofessional agreements and industry-level collective agreements, for all sectors of activity.
Tighter EU control
Various schemes are to be introduced to strengthen the EU's powers to monitor and assess cases of fraud. A proposal for a regulation adopted on March 13, 2018 provides for the creation of a European labor authority, which would be tasked in particular with controlling and monitoring postings at EU level.
Dir. 2018/957/EU of June 28, 2018, OJEU L 173/16 of July 9.
