Law on secondment of employees enters into force

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Date:
24 Fév 2021

ILO

Par:
Ariane Claverie, Guy Castegnaro

The Law of 15 December 2020 modifying the Labour Code in order to transpose the EU Posted Workers Directive (2018/957/EU) was published in Mémorial A 1024 on 18 December 2020 and entered into force on 22 December 2020. This article highlights the main new points of attention for employers and employees.

Extension of mandatory provisions that employers must respect

Employers whose main office is based outside Luxembourg and which are posting workers to Luxembourg within the context of providing cross-border services must guarantee posted workers that they will be covered by the 'social public order' provisions applicable in Luxembourg,(1) which now include:

  • employees' living conditions when their employer is providing accommodation for them away from their usual place of work. New Articles L 291-1 to L 291-5 of the Labour Code set out the living conditions for employees away from their usual place of work and the obligations of employers, contractors and ordering customers; and
  • allowances or refunds to cover travel, accommodation or food expenses incurred by employees who are away from their home for work (these expenses are limited to the costs incurred by the employees due to their posting).

Principle of equal treatment in terms of remuneration

Employers which post workers must now guarantee employees posted in Luxembourg:

  • remuneration corresponding with the minimum wage rates; and
  • all of the elements that make up the wage as defined by:
    • legal, regulatory or administrative provisions;
    • a general obligation collective bargaining agreement; or
    • a general obligation inter-professional social dialogue agreement.

Work postings organised by temporary agencies

The provisions applicable to secondment have now been extended to temporary employment agencies and companies that provide workers within the context of workforce leasing, which are based abroad, that post employees in Luxembourg for a user company based abroad.

In addition, user companies must now:

  • inform the employer of the posted worker (ie, the temporary agency or the company that provides workers within the context of workforce leasing) of the applicable conditions in terms of work and employment, including in relation to remuneration. The law specifies that when the user company is based abroad and is temporarily carrying out its activities in Luxembourg, it must also inform the employer that the employee in question is to be posted, before the posting starts; and
  • demonstrate by any means that this obligation to inform has been fulfilled, if asked by the competent authorities.

If user companies do not respect these obligations, they are liable to an administrative fine (€1,000 to €5,000 per posted worker, which is doubled for repeat offences).

Extension of information and documents that must be sent to Labour Inspectorate

In order to obtain a social ID badge for posted workers, employers must send the following new information to the Labour Inspectorate via the online platform:

  • the expected end date of the posting;
  • the nature of the services being provided;
  • the usual place of residence of the worker being posted and, if applicable, where the posted worker is staying when the employer is providing accommodation for them away from their usual place of work;
  • the identifying information and address of the client, the instructing party, the subcontractor, their respective co-contractors and their actual representatives who are in a contract with the posting employer; and
  • the identifying information of the user company and its actual representative, if applicable.

In addition, employers posting employees must send the following documents to the Labour Inspectorate via the online platform once the posting has started:

  • a copy of the service contract entered into with the client, the instructing party, the subcontractor and their respective co-contractors and a copy of the assignment contract, if applicable;
  • a copy of the record relating to the accommodation of the worker being posted; and
  • a copy of the document explaining how the employer will deal with travel, accommodation and food expenses and a copy of the document showing the total amounts of these expenses.

Long-term postings

Employers which post workers in Luxembourg for more than 12 months are now subject to additional working and employment conditions.(2) Thus, from the 13th month, posting employers are subject to all legislative, regulatory and administrative provisions and those arising from general obligation collective bargaining agreements or inter-professional social dialogue agreements applicable to work and employment agreements, apart from those relating to:

  • the procedures, formalities and conditions governing the conclusion and end of the contract, including non-competition clauses; and
  • supplementary pensions schemes.

However, the 12-month term may be extended to 18 months if the posting employer gives notice of this (with reasons) before the end of the 12-month term to the Labour Inspectorate via the electronic platform designed for this purpose.

Exception for road transport sector

Workers in the international road transport sector temporarily posted to Luxembourg continue to be subject to the old provisions relating to posting workers.

 

Endnotes

(1) The public order provisions applicable to any employee working in Luxembourg are listed in Article L010-1 of the Labour Code, as modified by the law, and relate to, among other things, remuneration, working hours, paid leave and bank holidays. Article L 141-1 of the Labour Code, as modified by the law, specifically exclude points 1, 8 and 11 of Article L 010-1 of the Labour Code from the provisions of 'social public order' applicable to employees posted to Luxembourg.

(2) The law specifies that if a posted worker is replaced by another posted worker carrying out the same task at the same place, the 12-month posting term corresponds with the combined posting terms of each of the posted workers in question.