ALERT: Amendment of the rules concerning the secondment of workers

By Philippe Goossens and David Charles

On February 20, 2019 the Government presented to the Council of Ministers a decree [1] transposing the Directive (EU) 2018/957 concerning the secondment of workers in the framework of the provision of services. The legal and practical mechanisms are complex.

The amendment of the rules on the secodment of workers responds to the necessity "to safeguard the freedom to provide, in both the short and the long term, services on a fair basis [2]".

To achieve this goal, the Directive modifies three aspects of the current laws. Decree 2019-116 of February 20, 2019 ensures their transposition.

The first, based on the principle of equal treatment, aims at reinforcing the minimum rights guaranteed to workers posted in a hosting member State where the worker must provide the service (so-called "core" rights).

In this regard, the most emblematic measure resides in the introduction of a single definition of wages, ensuring the effectiveness of the principle according to which "the posted employee must be paid wages equal to those received by a local employee in an equivalent position [3]".

Second, the European legislator modified the information requirements regarding the posting of temporary employees, which are strengthened and, especially, simplified, allowing to "clarify for each company (employer and user) the nature of their obligations [4]".

Finally, in order to ensure the effectiveness of these new measures, new administrative penalties were created. However, the administrative must now take into consideration the good faith of the violating party to assess the amount of the fine.

The transposition of this Directive, of which the measures enter into force July 30, 2020, occurs at the moment when the European institutions are reaching an agreement concerning the European Labour Authority (ELA).

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[1] Decree n° 2019-116 of February 20,2019 transposing Directive (EU) 2018/957 of the European Parliament and Council of  June 28, 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services

[2] Explanatory statement of the la Directive (EU) 2018/957 concerning the posting of workers in the framework of the provision of services

[3] Report to the President of the Republic concerning Decree 2019-116

[4] Report to the President of the Republic concerning Decree 2019-116