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  • Insights

What has changed for posted workers in Luxembourg?

Written by
CASTEGNARO, your partner in labour and employment law in Luxembourg.
Authors
Ariane Claverie
Partner - Luxembourg
CASTEGNARO
Luxembourg
19.02.21
4
What has changed for posted workers in Luxembourg since the implementation of the new Law on 22 December 2020? This article provides insights.
Long-term posting rules

The Law ((Law of 16 December 2020, published in Mémorial A n° 1024 of 18 December 2020) imposes additional working and employment conditions on companies that post workers in Luxembourg for more than 12 months. 

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. 

 

The Law provides that the duration of 12 months may be extended to 18 months upon duly motivated notification from the sending company, sent before the expiry of the 12-month period to the Inspection du Travail et des Mines (Labour and Mines Inspectorate, ITM) via the electronic platform intended for this purpose. 

Employment agency rules

The Law extends the scope of its provisions to postings organised by 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). 

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 employer is now also legally required to pay: 

  • Remuneration corresponding to the minimum wage rates as well as all the salary components fixed by a legal, regulatory or administrative provision, or by a collective agreement declared to be generally binding or by an agreement on inter-professional social dialogue declared to be generally binding, while respecting the index rate corresponding to the automatic adjustment for changes in the cost of living. 
  • Costs relating to accommodation in lodgings or rooms when the employer is providing accommodation for an employee away from their usual place of work (the cost must be fully covered by the employer). 
  • 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). 

 

Information requirements

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; 
  •  if applicable, the identifying information of the user company and its actual representative. 

 

A company posting an employee to Luxembourg should send the following additional documents to the ITM 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 co-contractors, as well as a copy of the assignment contract if applicable; 
  • a copy of records 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. 
Penalties

Non-compliance with the new information requirements described above is punishable by 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. 

Other

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.