What is expected to change for the posted workers in Luxembourg once the Bill is implemented? This article provides insights.
Long-term posting rules
The Bill plans to impose additional working and employment conditions on companies that post workers in Luxembourg for more than 12 months. When justified by the provision of a service, the term may be extended to 18 months if a duly motivated request, sent before the expiry of the 12-month period is submitted, with reasons, to the Inspection du Travail et des Mines (Labour and Mines Inspectorate, 'ITM') via the electronic platform designed for this purpose.
For example, as of the 13th month, the posting company will be subject to all legislative, regulatory and administrative provisions, as well as those arising from collective bargaining agreements for which a Grand-Ducal regulation has extended the personal scope of application beyond the signatories of the agreement. There is an exception for those relating to:?the procedures, formalities and conditions governing the conclusion and end of the contract, including non-competition clauses;?supplementary pensions schemes.
Calculating time periods
If another posted worker performs the same task at the same place, the cumulative duration of the two posting periods will be considered for calculating the 12-month period. 'The same task at the same place' will be considered taking into account, inter alia, the nature of the service provided, the work performed and the address of the workplace.
Allowances and expenses
Allowances specific to the posting are considered to be part of minimum wage provided that they are not paid to reimburse expenses actually incurred as a result of the secondment, such as travel, accommodation or food expenses.
The Bill intends to extend the mandatory provisions that must be respected by Member States posting employees in Luxembourg to include the following:
The employee's living conditions when the employer is providing accommodation for an employee away from their usual place of work.?Allowances or refunds for expenses 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).
New information needs to be sent to the ITM via the online platform to get a social ID badge ('badge social), namely:?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 an employee away from their usual place of work;the identifying information and address of the client, the instructing party, the subcontractor, their co-contractors as well as their actual representatives under contract with the posting employer;?how the employer deals with travel, accommodation and food expenses, if any;?if applicable, the identifying information of the user company and its actual representative.
The Bill provides that a company posting an employee to Luxembourg should send the following additional documents to the ITM via the online platform provided for this purpose once the posting has started:??a copy of the service contract entered into with the client, the instructing party, the subcontractor and their co-contractors, as well as a copy of the assignment contract if applicable;?a copy of the record relating to the accommodation of the worker being posted; a copy of the document explaining how the employer deals with travel, accommodation and food expenses, if any, as well as a copy of the document showing the total amounts of these expenses.
Non-compliance with the new information requirements described above are liable to an administrative fine of between EUR 1,000 and EUR 5,000 per seconded employee and between EUR 2,000 and EUR 10,000 in the event of a repeated offence within two years from the date of notification of the first fine.
Postings organised by a temporary agency
The Bill intends to extend the scope of the provisions to temporary employment agencies and companies that provide workers within the context of workforce leasing, which are based abroad, when the worker being 'used' carries out temporary work in Luxembourg for a user company based abroad.
In addition, prior to the posting, the user company that is temporarily working in Luxembourg must inform the employer of the posted worker (namely the temporary employment agency or the company that provides workers within the context of workforce leasing) of their posting and the applicable conditions in terms of work and employment (including remuneration).
Workers in the international road transport sector temporarily posted to Luxembourg will continue to be subject to the current provisions relating to posting workers until a new directive is published specifically for this sector.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.