par Vincent de GRAAUW et Martine DERDEVET
•
11 mai 2022
Any employee posted to France benefits from equal treatment based on a "core set" of French labour law provisions, including specifically the minimum remuneration to be paid during the stay (1). This remuneration is declared via the Prior to Work Notification (PWN) on the French Labour Ministry's SIPSI website - often referred to as "SIPSI notification" or "SIPSI declaration" (2) . This compulsory declaration in the context of the transnational posting of employees (3) includes a heading " gross hourly rate of pay applied during the posting (€) " which the employer or his representative (if the SIPSI declaration has been entrusted to a third party) must indicate on each posting notification. How to define this " gross hourly rate"? To put an end to several preconceived ideas, "no", the French minimum remuneration, known as “SMIC”, and not even the standard 35-hour working week calculation methods are applicable references for determining this famous rate! It is indeed much more complex than that! Here we explain everything! How is this remuneration calculated? Does the Collective Agreement have a role to play in determining remuneration? Is there a link with the working time modality? The answer must be given in several stages: 1) Determining the French collective agreement (CBA) applicable to posted employees Even if the employment contract of employees posted to France is not in principle governed by French labour law, certain legislative, regulatory, administrative, or contractual provisions of French labour law are applicable to them to provide them with a minimum level of protection. These are the provisions of the extended collective agreements (4) , which correspond to the activity of the posted employee within the framework of his service in France (5) . Thus, the activity of the posted employee in France may be different from the one declared by the employer to adhere to a collective agreement in his country of origin... With several hundred existing collective agreements in France, the exercise of determining the applicable CBA is therefore at first sight relatively perilous: has the foreign company already been registered in France? does it have an NAF code (6) that could be linked to a CBA? All this coupled with the question of the branch of activity (7) ? This is a real headache for the employer - and for the host company in the context of its obligation of due diligence . Indicating the French minimum legal remuneration (SMIC) hourly rate on the SIPSI declaration could lead, in the event of an inspection, to a recalculation of salaries and overtime surcharges and trigger the host company's co-responsibility for the sums to be paid. Indeed, the host company cannot ignore its obligation of due diligence and its duty of care in the context of posting, i.e. to ensure that its co-contractor has fulfilled its own obligations: While this obligation does not require the principal to carry out a thorough check of all the data entered in the SIPSI declaration, a host company that receives without reacting a posting declaration that is manifestly incomplete or erroneous in aspects that it cannot ignore, could be penalised for failure to comply with its obligation of due diligence... under the risk of being held liable under financial solidarity (8) . Indeed, the total or partial non-payment of the legal or conventional minimum wage of the posted employees exposes the principal (or the project owner) jointly and severally to the payment not only of the wages, but also of the related indemnities and charges if the employer of the posted employees fails to regularise their situation within a period of 7 days (9) . The same applies to a situation of total or partial non-payment of the minimum wage to posted employees by a co-contractor, a direct or indirect subcontractor or by a co-contractor of a subcontractor. Therefore, it is now essential to determine, upstream, the French collective agreement applicable to employees posted to France, which is also often wrongly determined according to the activity of the host company, whereas it should be determined according to the actual activity of the posted employees. Let's take the example of technicians who intervene - via a service contract - to maintain the air-conditioning in the premises of a company that depends on the French SYNTEC CBA: these posted employees are not subject to the SYNTEC CBA, but to that of their real activity: the CBA of “installation companies without manufacturing, including maintenance, repair, breakdown service of aeraulic, thermal, refrigerating and related equipment of 21 January 1986”... But once this CBA has been determined, the work has only just begun... 2) Determining the classification and working time arrangements The minimum remuneration of the posted employee depends on his grade, coefficient, level, position, etc., in which he should be placed according to the CBA we have just determined, "as if" he were an employee in France: according to his job description, his work contract in the country of origin, the addendum to the work contract or the letter of assignment, he must be positioned according to the determined CBA, all of this according to his classification: executive? Supervisor? technician? employee? worker? because the collective agreements set the minimum remuneration according to the category to which these posted workers would belong if they were employed in France . But it does not stop there: the search for the applicable minimum remuneration, once the above classification has been carried out, will also depend on the working time method chosen - or imposed - for the type of employee in application of the CBA: 35 hours? 39 hours with RTT (recuperation of working time -annualization? fixed day rate? All these elements must be considered to determine the minimum hourly rate. Indeed, the division of the remuneration to obtain an hourly rate will depend on the number of hours worked as well as the method of calculation of overtime (cf: some CBA allow a remuneration including the payment of "eventual" overtime in the form of a fixed remuneration: this must be taken into account to determine the hourly rate of remuneration of reference). Once this has been done, we can finally refer to the minimum remuneration amounts indicated in the salary-boards of applicable French CBA. These amounts will serve as the basis for the comparison of wages to be reported in the SIPSI declaration. 3) The final determination of the amount of remuneration in the SIPSI Notification Once the two previous steps have been completed, the minimum remuneration to be indicated in the SIPSI notification can be determined. This is the remuneration as defined by the Labour Code (10) . As indicated by the Ministry of Labour (11) , a comparison must be made between the remuneration paid to the posted employee under the legislation applicable to the employment contract and the remuneration (minimum wage and all wage accessories provided for by the legislation and the applicable extended collective agreement, see our points above) due for the posting in France. During the posting, the remuneration of the seconded employee must be at least equal to the total amount resulting from the addition of the following elements: the basic or minimum ordinary wage or salary: this is the legal minimum wage (SMIC) or the minimum wage determined by the applicable collective agreement (in most cases) and all other benefits and accessories paid, directly or indirectly, in cash or in kind, by the employer to the employee by reason of the latter's employment. It is not intended to include reimbursements or compensation for professional expenses incurred or borne by the employee in connection with the secondment. The company or its representative wrongly indicates in the SIPSI notification a remuneration that corresponds more or less to the remuneration package determined at the time of the posting in application of the Group's internal policy divided by 35 hours/week (including CompandBen / accommodation costs / COLA / travel costs / removal bonuses / expatriation bonus, etc.) without seeking to determine the elements that make up the salary within the meaning of the 2018 Directive and in application of the criteria analysed above (working time arrangements, classification, etc.) It is much more complex than that! The determination of the elements included (or not) in the salary elements and salary accessories within the meaning of the 2018 Directive is totally different from the one determined by the companies in their remuneration setting policy at the time of posting, inevitably leading to risky requalification’s and requests for recalculation of salaries followed by an additional monetary payment to be borne by the employer or the host company if the employer does not meet its obligations, in particular in comparison with the minimum reference salary from the applicable CCN. This can therefore be very costly for companies that send their employees to France, but also for those that host them under the principle of co-responsibility. We can assist you in finding the minimum wage and setting the hourly rate in the SIPSI notification. Contact us now! (1) Article L1262-4 al 8 of the Labour Code, in force since 30 July 2020. "Remuneration within the meaning of Article L. 3221-3, payment of wages, including increases for overtime" (2) Article R. 1263-4-1 and R. 1263-6-1 of the Labour Code (3) Article L1262-2-1 of the Labour Code (4) Article L. 1262-4 of the Labour Code (5) Article R. 1261-2 of the Labour Code (6) Foreign companies already registered with the SFE (ex-CNFE / national centre for foreign companies) for the payment of payroll taxes (7) Provisions of the CBA that have not been previously "extended" to the level of the Branch could be deemed not to be applicable, cqfd (8) Articles L1262-4-3, R1263-15 and following of the Labour Code (9) Article L. 1262-4-3 of the Labour Code (10) Article L. 3221-3 of the Labour Code (11) Ministerial Instruction, January 19th, 2021