Secondment of workers: new rules

Source : Arendt
7 mars 2023 par
Legitech, LexNow

Given the highly mobile nature of the transport sector, drivers are not generally posted for long periods of time to another Member State under service contracts. EU Directive 2020/1057 of 15 July 2020[1] was adopted with the intention of clarifying the circumstances in which drivers are not subject to the rules relating to long-term secondments. The Directive was implemented into Luxembourg law by the Law of 23 December 2022[2] (the “Law”).

The legislature has also taken the opportunity to correct certain inconsistencies in the implementation of Directive 2014/67[3] on the posting of workers in the framework of the provision of services. As a result, the administrative rules applying to businesses in relation to the secondment of workers have been eased to some extent and certain points have been clarified.

Below is a summary of the key changes made by the Law to the legal provisions relating to the secondment of workers in the context of the supply of services.

1. Introduction of specific rules for postings relating to mobile road transport operations

  • The Law sets out specific obligations for road transport businesses established outside Luxembourg. In particular, businesses must:

  • Submit a “posting declaration” via the EU Internal Market Information System (known as “IMI”) on or before the start of any posting within Luxembourg. The posting declaration comprises certain information, including identity of the business; details of the transport manager or other contact person in the Member State where the business is established; identity, residential address and driving licence number of the mobile employee; date of commencement of their employment contract and the law applicable to it; planned start and end dates of the posting and number plates of the vehicles.

  • Keep posting declarations up to date.

  • Ensure that the mobile employee has certain documents available to them, either in hard copy or electronic format, including a copy of the posting declaration submitted via IMI and evidence of transport operations taking place in the host Member State.

  • If requested by the Inspectorate of Labour and Mines (Inspection du travail et des mines “ITM”), submit copies of certain documents after the posting has ended and no later than eight weeks after the request. These documents include evidence of transport operations taking place in the host Member State, tachograph records and documents relating to the pay of the mobile employee for the duration of the posting.

The Law also sets out various situations that do not constitute a posting within the meaning of the Law

2. Amendments and relaxations of rules applying to other types of secondment

2.1 Information and documents to be provided to the ITM

The volume of information and documents that must be submitted to the ITM in relation to the posting declaration has been reduced. Certain documents now only need to be retained and provided to the ITM on request.

Any change to the storage location of documents relating to the services of seconded workers must now be communicated to the ITM.

2.2 Joint and several liability restricted to subcontracting chains

Previously, there was joint and several liability among the seconding business, the host business (i.e. the contracting authority or principal) and the subcontractors, if any. This is no longer the case under the Law. Joint and several liability is now restricted to the subcontracting chain. The effect was that host businesses were subject to an additional responsibility if they contracted with a cross-border service provider. This responsibility could act as a disincentive to enter into a contract with such a supplier.

2.3 Enhanced protection for seconded employees taking court proceedings

To guarantee equal treatment between seconded and non-seconded employees, seconded employees now also benefit from legal protection when they take court proceedings to enforce their rights as seconded employees. They cannot be subject to reprisals and can make use of an expedited procedure in the employment courts to litigate their rights.

2.4 Clarification of employer obligations regarding accommodation

An employer has additional obligations when a seconded employee’s accommodation does not meet the legal requirements. In particular, the employer must rehouse the employee without delay for at least the period initially agreed. Information about the change of accommodation (first name, surname and identification number of the occupant and address of the new accommodation) must be submitted to the ITM within 24 hours.

2.5 Clarification of amount of fines and length of prison terms

Where the seconding business fails to ensure compliance by a defaulting subcontractor, the seconding business and the subcontractor are jointly and severally liable. They are also liable for a fine ranging between EUR 1,000 and EUR 5,000 per employee, which can be doubled for repeat occurrences. However, the maximum total amount of the fine is EUR 50,000.

The Law also makes it clear that failure to comply with the accommodation requirements is punishable by a fine of between EUR 251 and EUR 125,000, imprisonment for between eight days and five years, or both.

The Law was published in the Official Journal on 23 December 2022 and came into force on 27 December 2022.

Authors: Raphaëlle Carpentier and Noémie Haller