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The international contract of employment can be broadly defined as a contract in which all facets are not attached to France. The fact is, however, that there exists no explicit definition of an international contract in the French Labor Code. Nevertheless, two types of situations emerge: either the employee is specifically recruited to work abroad, in which case a particular employment contract is concluded, or they are sent abroad by the company for which he was already working in France in which case an addendum to the employment contract is concluded. In both cases, the mandatory information appearing in both types of contracts are the same.
The Essentials of the International Legal Process
When an employer hires an employee of a Member State of the Union, they must meet the mandatory stipulation required by the EEC Directive No. 91-533 of 14 October 1991 on the obligation of the employer to inform the employees of the conditions applicable to the contract or employment relationship.
Section 4 of this Directive concerns expatriated workers. It establishes, in conjunction with Article 2, the essential components that must appear in the contract:
- Article 2:
- The identity of the employee and employer;
- The workplace;
- Title, function or job category of employee;
- Start date and duration of the contract (or permanent);
- The length of notice periods and paid holidays;
- The amount and composition of remuneration, and its frequency of payment;
- The length of working day or week;
- Article 4:
- The duration of the employment abroad;
- The currency for payment of compensation
- Possibly, whether in cash or in kind related to expatriation;
- Possibly, the conditions for repatriation of the employee
However, the Directive specifies, in Article 4 paragraph 3, that the essential elements of the employment contract relating to the expatriate employee shall not apply if the contract does not exceed one month in duration.
The Law Applicable to an International Contract of Employment
In principle, the law applicable to the international contract of employment is one chosen by the parties involved. When no choice is made, the law of the workplace applies, unless there is an international convention governing this case (e.g. the Rome Convention), or if there are records of local public opposition to this principle, which are non-dirigible.
The Application of Collective Agreements
If the contract is subject to French law, the collective agreement will apply through a local contract and will not necessarily apply in cases of an international contract of employment.
Indeed, every agreement shall collectively determine its territorial scope. The latter rarely exceeds the framework of the French borders.
However, some collective agreements include specific provisions for employees sent abroad. And, if no particular provision is included, the employee has the opportunity to negotiate with his or her employer so that the collective agreement applies to their business.
Other Duties of the Employer Posting an Employee Abroad
Apart from obligations relating to the preparation and content of an international contract of employment, the employer must comply with rules relating to social security and the working conditions of its employees.
Firstly, in the case of expatriation, the employee is no longer under French social security, unless they agree to voluntary insurance. However, when the employer is under the initiative of expatriation, they must perform this step themselves.
On the other hand; the employer is obliged to take all precautions necessary to assure him of the conditions of decent health and safety in the workplace, even if they cannot guarantee equal conditions to France (Soc. October 11, 1984, No. 83-12686).
This obligation must be qualified when the employee accepts an award on the compensatory change in working conditions. In this case, they will not bring forward an action based on poor working conditions.
Given the complexity of the issues raised, employers as well as employees have a vested interest in referring to the knowledge and experience of a firm of competent counsel in both labor and international law.