Posting employees: bill introducing specific rules for the road transport sector and adapting the general rules of the Labour Code

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Newsflash
Datum:
11 Nov 2021

Newsflash

Von:
Dorothée David

Bill no. 7901[1] was submitted to the Chamber of Deputies on 18 October 2021.

  • Specific rules for posting road transport drivers 

The Bill is intended to transpose Directive (EU) 2020/1057 into national law establishing specific rules for posting drivers in the road transport sector.

The road transport companies referred to in the Bill, based outside Luxembourg and temporarily posting drivers there (i.e. mobile employees within the meaning of article L. 214-2 of the Labour Code), would thus be subject to the following provisions in particular:

  • obligation to make a posting declaration via the internal market information system (i.e. the “IMI” system), no later than when the posting on Luxembourg territory begins;
  • obligation to make sure that mobile employees have the following hard copy or electronic documents at their disposal: a copy of the posting declaration, proof of the transport operations taking place in Luxembourg (in particular the electronic consignment note e-CMR), and the tachograph records (in particular the country symbols of the Member States in which the mobile employees were present when carrying out international road transport operations or cabotage operations). Mobile employees should keep these documents and hand them over if asked to do so during a roadside check;
  • at the express request of the ITM, after the posting period and no later than eight weeks after the request, obligation to transmit copies of the following documents: proof of the transport operations having taken place in Luxembourg, the tachograph records, the documents relating to the remuneration of the mobile employee during the posting, the employment contract or any equivalent document within the meaning of Directive 91/533/EEC, the time-sheets relating to the mobile employee’s work, and proof of payment for these hours;
  • calculation of the maximum duration of 12 months referred to in article L. 141-2 of the Labour Code: the posting of the mobile employee would end when the latter leaves Luxembourg territory in the performance of the international carriage of goods or passengers. This period cannot be cumulated with previous periods of posting by the employee or by a replacement.

The Bill also specifies the conditions under which the following situations would not constitute posting: bilateral freight or passenger transport operations, transit, additional activities of a bilateral transport operation and combined transport operations, as defined by the Bill.

The specific rules for posting road transport drivers would prevail over the general rules on posting. The latter would, however, continue to apply, according to the Bill, for everything that is not covered by the sector-specific provisions introduced in the Labour Code.

  • Adaptation of the general rules on the posting of employees

The Bill also stipulates changes to certain provisions in the Labour Code in order to improve the effectiveness and protection of the posting of workers, including:

  • specifying and reducing the list of information contained in the posting declaration and the list of documents that must be sent to the ITM. These should be retained and made available to ITM only on request;
  • limiting the joint and several liability provided for in article L. 281-1 of the Labour Code only to chains of subcontractors (the recipient of the service would no longer be covered);
  • protecting posted employees who have initiated legal proceedings;
  • extending the powers of the ITM and its director, in particular in the event of failure to meet the accommodation requirements of an employee away from their usual place of work.

The new applicable provisions will be outlined in a specific Newsflash once the law has been published in the Mémorial.

 

[1] Bill: 1° Transposing Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) no. 1024/2012; 2° modifying the Labour Code.