Requirements that contractors and main contracting parties in France must fulfil in the event of posting

Contractors and main contracting parties calling on the services of companies established outside France and posting employees to France are required to fulfil certain requirements and duties, which particularly include due diligence across several areas.

For more information about requirements incumbent upon employers established outside France and posting workers to French territory, click here.

Note : unless specified otherwise, the term "contractor" will also refer to the "main contracting party" in terms of its relationship with its direct co-contractor.

Drawing up a declaration of posting and designating a representative

The contractor must check, before the posting gets underway, that the service provider with which it has entered directly into a contract and which is posting employees to France has duly fulfilled its prior posting requirements, namely submitting to the labour inspectorate, via the SIPSI online service, the prior declaration of posting in which a representative has been designated in France.

The contractor must therefore ask its co-contractor, before the start of a posting of one or more employees in France, for the acknowledgement of receipt of the prior declaration of posting. It may make this request using the SIPSI online service.

All contractors and public and private clients, with the exception of individuals who contract for their personal use or for that of their close family (spouse, cohabitee or relatives in the ascending or descending line), are subject to this obligation.

If the contractor does not receive the acknowledgement of receipt of the declaration from the service provider with which it has directly entered into a contract, before the posting gets underway, it must make a declaration on the SIPSI online service within 48 hours of the posting getting underway.

Administrative penalties : 
1) Failure by the contractor to fulfil its requirement to verify the formalities that its service provider should accomplish (prior declaration and designation of a representative) is punishable by an administrative fine of up to € 4,000 per posted employee and €8,000 in the event of repeated failure ;
2) Moreover, where no prior declaration of posting has been made by either the employer or the contractor, the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE) may suspend the international provision of service for up to one month.

Direct or indirect subcontractors and temporary employment agencies

The main contracting party's requirement to make sure that a prior declaration of posting has duly been made applies :

• For each of its co-contractors’ direct or indirect subcontractors, whom it must have accepted. Indeed, upon signing the agreement or contract and throughout its term, any main contracting party wishing to call on one or more subcontractors must :
  • Ensure each subcontractor is accepted ;
  • And approve the payment terms of each subcontracting agreement ;
• For each of the companies carrying out temporary agency work with which the aforementioned subcontractors have entered into a contract themselves.

Said requirement applies according to the same terms as those concerning the direct co-contractor.

Administrative penalties :

1. Failure by the main contracting party to fulfil its verification requirement is punishable by an administrative fine where the employer has personally failed to fulfil at least one of the two requirements incumbent upon it (prior declaration and designation of a representative): the amount of the fine is up to €4,000 per posted employee and up to € 8,000 in the event of repeated failure within two years from the day of notification of the first fine. The total fine amount shall not exceed € 500,000 ;
    
2. Moreover, failure to declare the posting (on the part of the employer and main contracting party) may provide grounds for suspension, upon decision of the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE), of the international service provision for up to one month.

Paying fines

The contractor must receive from its co-contractor a sworn statement certifying that the latter has, where applicable, paid the amounts owed for the fines stipulated on the grounds of failures regarding the declaration requirement or in the event of fraud regarding the core set of rights that posted employees must be guaranteed. Said statement contains the co-contractor's full name and corporate name as well as the signature of its legal representative.

Failure to pay fines may lead to the international service provision being suspended or prohibited by the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE) for a maximum period of two months, which may be renewed. Such suspension or prohibition shall only be lifted where the employer in question (or its representative where applicable) provides evidence that the previously notified fines have duly been paid.

Compliance with the minimum wage

Contractors and main contracting parties have a duty to ensure compliance with payment of the mandatory minimum wage by their co-contractors, direct and indirect subcontractors and their subcontractors' co-contractors: a contractor or main contracting party receiving a report from an inspector that one of these service providers has failed to comply with the statutory or agreement-based minimum wage for posted employees must order said service provider and its immediate contractor to bring an immediate end to such a situation.

The employer posting the employees and, where applicable, its co-contractor, must notify the main contracting party or contractor of the measures taken to end the situation, within seven days. The main contracting party or contractor shall inform the inspector of the measures taken (or lack thereof) once this time-limit has passed.

If the situation reported is not resolved, the contractor or main contracting party - except where it terminates the service provision agreement - will be required, jointly with the employee's employer, to pay the remuneration and compensation owed to each posted employee as well as, where the employee is affiliated to a French social security scheme, the corresponding social contributions owed to the bodies responsible for their collection. In the event the employer, main contracting party or contractor fails to pay the minimum wage, the inspector shall notify the employees concerned in writing that they may appeal to the employment tribunal to obtain the sums owed.

All contractors and public and private clients (except individuals who contract for their personal use or for that of their close family) are subject to this obligation.

Penalties : 
Failure to fully or partially pay the statutory or agreement-based minimum wage may also lead to the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE) suspending the international service provision for up to one month.

For more information about the minimum remuneration to which a posted employee in France is entitled, see " In a nutshell ".

Compliance with the core set of rules under labour law

When one of its direct or indirect subcontractors does not comply with the provisions applicable to posted employees for the areas listed by the core set of rules under labour law (to find out more click here), and it is informed thereof in writing by an inspector, the contractor must order its subcontractor in writing to bring an immediate end to this situation.

On receiving this order, the subcontractor has 15 days in which to inform the contractor in writing of the measures taken to end the situation.

The contractor must then forward a copy of the response to the inspector. Where the subcontractor does not send a written response, the contractor must inform the inspector of the persisting failure to comply within two days.

Penalties :
Should it fail to comply with the aforementioned order and notification requirements, the contractor may be liable to a category 5 fine (up to € 1,500)

Serious violations of the labour code (such as not complying with the weekly rest period) may also lead to the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRRECTE) suspending the international service provision for up to one month.

The occupational health service and accidents at work

The competent occupational health service for posted employees is the host company's service when posted employees are hired out or the user company in the case of posted temporary agency workers. In other cases (employees not hired out to the customer in France, service on own account), the competent occupational health service will be a territorially or professionally competent inter-company occupational health service (SSTI) with which the company established outside France must be affiliated. To find out more about the SSTI, click here.

The occupational health service is responsible for conducting medical assessments and preventive action in the workplace.

The host company, user company or employer must forward to the occupational health service :

• The contact details of the foreign company and the facts relevant to the occupational physician: service location, period, type of work, risks and so on ;
• The names of the posted employees and, where possible, an indication of whether they have benefited from equivalent medical monitoring in their home country.

Action in the workplace is carried out at the instigation of the host company's occupational health service, and documents (reports, observations, etc.) typically forwarded to the employer are also sent to the contractor or main contracting party.

If an accident at work occurs, it must be reported : 

• In the context of posting on own account, by the employer who posted the employee to France. This report indicates : 

1. The name or corporate name as well as the postal and email addresses and telephone details of the company or establishment which normally employs the employee along with its business register references or any other equivalent references ; 
2. The full name, date and place of birth, address of ordinary residence, nationality and professional qualification of the victim ;
3. The date, time, place and detailed circumstances of the accident, the type and location of the injury and, where applicable, the duration of the sick leave ; 
4. The identity and contact details of any witnesses.

• In other posting situations, by the contractor or main contracting party. In this case, in addition to the aforementioned mandatory information, the report must also indicate the name or corporate name of the contractor or main contracting party, its post and email addresses, telephone details and, where applicable, the establishment's SIRET (business identification) number.

Compliance with obligations relating to the representation of staff by the contractor or client

1. Obligation to inform staff representatives

For companies with more than 300 employees :

In order to inform the staff representatives that posted employees are being hired out to the company, the company's social report must specify

• The number of the company's employees posted outside France ;
• And the number of posted workers hosted, irrespective of the posting framework (with the exception of posting for own account).

Penalties : 
The late or incomplete presentation of the social report is considered to amount to a failure to present it, and characterises an offence of impeding the social and economic council's operation, punishable by a one-year prison term and € 7,500 fine.

More generally, concerning a company with at least 300 employees or a distinct establishment with at least 300 employees, failure to establish or submit an annual establishment or corporate social report to the establishment or corporate works council is punishable by a € 7,500 fine.

For companies with less than 300 employees

With the exception of postings that are exempt from prior declarations of posting (to find out more click here), companies established in France, hosting posted employees, must append to the single staff record (in paper or digital format) which each establishment must keep, a copy of the declarations of posting.

These copies of declarations of posting are thus accessible to the staff representatives and officials in charge of ensuring application of the labour code and social security code.

Penalties : 
Failure to keep a record, update it or indicate the necessary information is punishable by a fine of up to € 750 per employee concerned.

2. Obligation to set up a social and economic committee

With regard to the establishment of a social and economic committee (SEC), for the calculation of the threshold of 11 employees leading to the creation of an SEC, posted employees supplied to a host undertaking over twelve consecutive months are included in the staff numbers of the host undertaking.

For more information on SESs, click here.

Posted employees' living conditions

Contractors and main contracting parties have a duty as regards the living conditions of employees (whether or not they are posted), their co-contractors and direct and indirect subcontractors.

When these employees are housed in collective living conditions that are incompatible with human dignity (serious failings in terms of comfort, cleanliness, protection or privacy), the contractor or main contracting party must, at an inspector's written request, immediately order their employer, in writing, to bring an immediate end to such a situation. The contractor or main contracting party shall inform the inspector of the measures taken by the employer within 24 hours of receiving the order.

If the situation reported is not resolved by the employer, the contractor or main contracting party is required to assume responsibility for the collective housing of employees, in conditions that meet the occupational health and safety standards, and therefore to rehouse the employees in new collective housing under decent conditions.
This duty of care requirement applies to all private and public contractors and main contracting parties (except individuals who enter into contracts for their personal use).

The housing of posted employees in substandard conditions may, in addition, lead the Regional Directorate for Enterprises, Competition Policy, Consumer Affairs, Labour and Employment (DIRECCTE) to suspend the international service provision for up to one month.

The obligation to inform of user undertakings using posted employees supplied by temporary employment agencies established outside France

A user undertaking established in France making use of posted employees supplied by a temporary employment agency established outside France must inform that agency of rules applicable to those employees in relation to remuneration for the period in which they are supplied in France.

A user undertaking established outside France which, in order to carry on its business in France, makes use of posted employees supplied by a temporary employment agency also established outside France must, prior to the posting, inform that agency of the posting and of rules applicable to the agency’s employees over the period for which they are supplied in France. For details of the information to be provided, click here.