Thematic feature - posted workers

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This article examines the French situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.

EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.

The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:

  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
  • health, safety and hygiene at work;
  • protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
  • equality of treatment between men and women and other provisions on non-discrimination.

As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').

The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.

In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The French responses are set out below (along with the questions asked).

Regulatory framework

What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?

Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?

The main protective measures for posted workers employed in the framework of the provision of services were taken in France before the EU Directive was adopted, especially in the form of provisions included in the 'five-year' law on employment and professional training of 20 December 1993. Since this law was passed, Article L.341-5 of the Labour Code has provided that, when a company not established in France provides services there, employees that it temporarily posts to France are covered by the legislative, regulatory and collectively-agreed provisions applicable to workers employed by companies established in France and operating in the same sector. This legislation is applicable in terms of social security, pay, working time and working conditions, within specified limits and following procedures laid out in decrees.

A decree issued in 2000 updated these provisions and provides that joint industrial tribunal s (conseils de prud'hommes - FR0301107F) have the jurisdiction to deal with litigation concerning the rights of posted workers set out in Article L.341-5 of the Labour Code (Decree No. 2000-462 of 29 May 2000, published in the Journal Officiel on 31 May 2000). Another decree, dating from September 2000 (Labour Code, D 341-5 to D341-5-14) supplemented the regulations applicable to posting to France. As a result, outside the construction industry, French provisions concerning the minimum length of annual paid holiday and the minimum rate of pay do not apply to workers posted to France for a period of eight days or less, where the purpose is the assembly or the initial installation of equipment.

A memorandum dated 30 July 1998 issued by the management of the social security system (memorandum DSS/DAEI/98) summarises the rules regarding the posting of employees and non-dependent workers in terms of the applicable social security scheme. This memorandum allows the employee, both in terms of benefits and contributions, to remain a member of the scheme in his or her usual country of employment during the set period of the posting. This memorandum was later supplemented (by memorandum DSS/DACI/34 of 18 January 2001) to take into account EU case law developments on the posting of employees within the EU. The memorandum details, among other things: the concept of employee posting; the criteria for using the E101 form issued by the social security funds, through which the employer applies for the posting of an employee; and specifies that performing artists, models and other workers not considered as dependent employees by legislation in the country where they usually work need not be members of the French scheme.

In terms of pensions, the system in force in France allows all employees to acquire immediate rights to a supplementary pension in the form of 'points', and to retain these points, whatever happens in their later working life, whether in France or another country.

Finally, the 'social modernisation' law of 17 January 2002 (FR0201102F) contained provisions on the reform of the Fund for French Nationals Abroad (Caisse des français de l'étranger) and the criteria for access to health cover for French expatriates and employees posted to other countries.

In terms of temporary agency work, there has been no noteworthy change in the French situation since 1999.

Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?

No collective agreements or new initiatives by the social partners specifically concerning posted workers are reported from France.

The workers affected

Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.

Ministry of Foreign Affairs figures allow for an estimate of the number of French employees posted to other countries. Most of them work in western Europe, and the figures are set out in the table below.

Number of French nationals registered with French consulates and embassies in western Europe*, and number of posted workers, 1998-2001
Year No. of people registered % change on previous year No. of total who are posted workers % change on previous year
1998 500,472 3.2% 16,634 -5.3%
1999 510,474 2.0% 12,722 -23.5%
2000 509,085 -0.3% 12,644 -0.6%
2001 509,161 0.0% 13,159 4.1%

* EU plus Andorra, Cyprus, Iceland, Malta, Monaco, Norway, Switzerland, Turkey and Vatican City.

Source: Ministry of Foreign Affairs..

Please provide similar figures, if available, for employees posted to your country from other EU Member States.

There are no reliable statistics on the number of workers posted to France from other countries. However, in 2002, the Interministerial Committee on Combating Illegal Employment (Délégation interministérielle à la lutte contre le travail illégal, DILTI) painted a worrying picture of new illegal seasonal work networks. In its report, DILTI estimated that in 2001, the number of workers posted to France stood at between 18,000 and 30,000, yet only 8,554 were officially registered. This estimate offered no breakdown by industry. However, DILTI stated that the sectors mainly concerned were construction, hotels and catering, transport, and agriculture.

Workers in the construction industry

The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?

The entire set of regulatory provisions referred to above (under 'Regulatory framework') applies to all sectors, including construction, with a few notable exceptions. For example, the decree of September 2000 excluding short-term installation and assembly work from French minimum wage and paid holiday provisions explicitly does not apply to construction.

Some transnational provisions have been adopted for posted workers in the construction industry, particularly those involving French and the German sectoral holiday pay funds. In 1997, the French National Compensation Fund in the Building and Public Works Industry (Caisse nationale de surcompensation du bâtiment et des travaux publics, CNSBTP) and its German counterpart, the Leave and Wage Equalisation Fund of the Building Industry (Urlaubs- und Lohnausgleichskasse der Bauwirtschaft, ULAK), signed an agreement that simplified the procedures for employers in terms of paid holidays for their employees posted to the other country (ie France or Germany).

The positions of the social partners and government

Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.

When the EU Directive was adopted in 1996, the trade unions welcomed it warmly, as it provided basic guarantees for posted workers and avoided certain forms of 'social dumping'. Most unions would now like to see more effective control over companies posting workers abroad.

French building industry firms were originally in the forefront of support for the Directive. Their concern was to avoid competition that they deemed unfair, from companies in the same industry but from neighbouring countries.

The government regulated this subject in France before the Directive was adopted, and with even greater levels of protection granted to posted employees and French firms. Due to the action of the interministerial DILTI committee, state agencies have recorded many fraudulent practices in this area. The number of workers officially posted in France does not match the reality observed. Contrary to general opinion, this fraud does not exist solely in building and agriculture. DILTI acknowledges that it is also present in the hotel and catering trade, and even the luxury goods industry. Underpinning this fraud, there is, according to some experts at the Ministry of Social Affairs, a conflict over employment norms, since certain jobs that a priori constitute paid employment in France are not necessarily so in neighbouring countries (especially in the UK). The companies concerned feel that the French government, by making official investigations and taking companies to court, is infringing the EU fair competition rules.

The application of the EU posted workers Directive, which actually concerns only a limited number of employees, has thus been officially achieved. Its interpretation, however, is the subject of grievances and court cases.

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