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The legislator has recently changed article L. 211-29 of the Labour Code regarding keeping a special record of working time. The new article now stipulates the obligation for any employer to add to “a special record or file the start time, end time and hours worked each day”, as well as the usual information required, namely: any extensions to normal working hours, hours worked on a Sunday, statutory bank holiday or overnight, as well as remuneration paid in any of these cases.
This new provision, stipulated at the same time as the law of 14 March 2017 on the secondment of employees, helps make sure that foreign employers seconding employees to Luxembourg and employers based in Luxembourg are treated equally, by imposing exactly the same obligations on both groups in relation to keeping records of working time.
New obligations relating to business and subcontracting contracts
A new article, L. 281-1, has recently been added to book II of the Labour Code, under Chapter VIII entitled “Obligations and responsibilities of the client or instructing party within the context of a business (“contrat d’entreprise”) or subcontracting contract”.
Article L. 281-1 now imposes three obligations on any client (“Maître d’ouvrage”: business that places the order for a contract from a main contractor) or instructing party (main contractor that subcontracts out the execution of the work) entering into a contract with a service provider:
- a general obligation to provide information to the ITM;
- an injunction obligation for the service provider, or any company involved in the subcontracting chain if applicable, designed to make the latter cease any breach of public social rules observed by the ITM;
- an obligation to report to the ITM if a defaulting company (service provider or employer involved in the subcontracting chain) has not confirmed that it has resolved the situation within a maximum of 15 days of the injunction.
If a client or instructing party does not fulfil the abovementioned obligations relating to injunctions and reporting they are now bound jointly and severally, with the defaulting company, to pay the remuneration, compensation and charges owed to the latter’s employees, if applicable.
In the event of a secondment, the client or instructing party will also be liable for an administrative fine ranging from 1,000 to 5,000 EUR per seconded employee, and from 2,000 to 10,000 EUR in the event of a repeated offence within 2 years, where the total amount of the fine is limited to 50,000 EUR.
Although resulting from the law of 14 March 2017 on the secondment of employees, these new obligations are not exclusively aimed at situations involving the secondment of employees in Luxembourg by a foreign company. They apply to any business and subcontracting contracts subject to Luxembourg law. The scope of article L. 281-1 only excludes a private individual who enters into a contract with a company for their personal use, or that of their spouse, their partner or their ancestors and heirs.
