This is one of the biggest cases of posted work fraud ever tried in France. A Spanish interim company, Terra Fecundis, and several of its managers, appear from Monday, May 17 before the Marseille Criminal Court for ” hidden work “ and “Bargaining”.
Rather, the company is one of the most established. Officially, it does not have an establishment in France, it has been registered in Spain since 2002. But it sends from this country several thousand temporary workers each year to work on French farms. Between 2012 and 2015, the period chosen for this legal procedure, they were between 5,000 and 6,800 per year.
A significant portion of these workers are of South American nationality. They have a work permit or Spanish nationality, which allows them to benefit from the European statute of posted worker. This allows a company from one Member State to temporarily send employees to work on behalf of a company located in another country of the European Union.
To avoid the dumping social, the company must align the rights of its posted employees with a hard core of rules in force in the host country: salary, overtime, working time or even leave. On the other hand, the worker remains affiliated with the social security organizations of his country of origin, to which the temporary employment company continues to pay its contributions.
53 million euros in turnover
Thus, it is to the Spanish system – more advantageous than the French system – that Terra Fecundis is affiliated with. The labor inspectorate began to look into the organization of this company from 2010. Its investigations led it to conclude that it was circumventing the regulations on posted work.
According to her, since the company was “A stable, permanent and continuous activity” in France, it should have declared an establishment there, and therefore pay their social contributions. According to certain elements of the survey, it is in France that it achieves most of its turnover.
Ten years of proceedings
In addition to this circumvention of the legislation on posted work, assimilated to undeclared work, the company is also prosecuted for “Bargaining” labor : justice suspects the non-payment of certain hours worked, the non-increase of overtime, the exceeding of the working time or the absence of medical follow-up.
It therefore took more than ten years for the first reports to lead to a trial. Originally scheduled for May 2020, the hearing had been postponed because of the health crisis. “To my knowledge, this is the most important case of undeclared work, in particular in terms of financial issues, judged to date in France”, notes Maître Jean-Victor Borel, lawyer for Urssaf, who became a civil party in the case.
→ READ. The Court of Auditors targets fraud in “posted work”
By counting only the social security contributions, the financial loss is estimated at at least 80 million euros by the social security funds. The Central Agency of Social Security Bodies (Acoss) also brought civil action in the case, alongside the CFDT and the professional organization of the interim, Prism’emploi.
Clusters de Covid-19
Terra Fecundis continues to send posted workers to French territory. In 2022, she should appear before the court of Nîmes (Gard) for other acts of concealed work, committed between 2015 and 2019, this time alongside farmers who have used her services.
The company is also targeted by a procedure opened by the prosecutor’s office of Tarascon (Bouches-du-Rhône). After checks carried out on farms in the summer of 2020, clusters of Covid-19 were discovered in the homes of foreign workers.
The investigation is aimed this time at alleged acts of trafficking in human beings, exposure of people to undignified accommodation conditions. and other breaches of the Labor Code, according to revelations from the local investigative newspaper Marsactu, confirmed by AFP. Solicited, the communication of Terra Fecundis and its lawyer were not able to answer our interview request and our questions sent by email.
In its report presented on May 12, the labor inspectorate indicates that it carried out 24,600 interventions related to the posting of workers in 2019. After a drop by half of inspections in 2020, due to the health crisis, it is aiming for a target of 20,000 interventions for the end of this year. The labor inspectorate wishes to target in particular ” sectors of activity where the risks of cluster appearances Are the highest, due to accommodation or working conditions.