Interdiction d’accès de chantier à une entreprise en cas de travail dissimulé !

Prohibition of construction access to a company in case of hidden work!

by gmorales on 9 January 2017 | Category: Public markets
Interdiction d’accès de chantier à une entreprise en cas de travail dissimulé ! Interdiction d’accès de chantier à une entreprise en cas de travail dissimulé !

TA Lyon, December 16th 2016, company SAPE SAS, n ° 1609011

SAPE SAS was awarded lots of two works contracts. For the execution of these contracts, it used Portuguese subcontracting companies. Following a control on the sites of the services of DIRECTE, the prefect has issued an order ordering the shutdown of SAPE SAS company on the two sites concerned for a period of one month, because of the existence of hidden work. The company appealed to the judge hearing the application for interim relief to request the annulment of the prefect's order. Considering the existence of a link of subordination between the personnel made available and the holder of the contract, in spite of the approval of the subcontractors, the judge rejects the appeal.

Rule No. 1: The existence of a relationship of subordination between the contractor and the staff made available by foreign contractors characterizes a concealed work

To put an end to the activity of the applicant company, the Prefect relied on a DIRECTE report stating that the Portuguese subcontracting companies did not have any autonomy on the worksites and that the employees present had in reality a relationship of subordination with that company and not with the subcontractors. The report concludes accordingly concealed, massive, permanent and organized work ". On this basis, the Prefect considered that the applicant had benefited from a contribution of labor whose sole purpose was the supply of undeclared labor in France and that she had become the employer of the workers because of of the relationship of subordination between her and them. In that regard, the applicant argued that the subcontractors had been regularly declared and approved by the developer and that they had made the declarations of posting of employees to work on the sites after having appointed a legal representative in France . However, the Tribunal notes that only an executing labor force, to the exclusion of any managerial staff, was invoiced by the subcontractors to the applicant and that the finding of facts by the control establish the link of subordination between the staff made available and the company SAPE SAS.

Rule n ° 2: The elements contained in a control report make it possible to motivate the decision of cessation of activity

The applicant raised, in particular, against the prefectural decree the inadequacy of its reasoning. In this respect, it will be recalled that Article L8272-2 of the Labor Code provides that the administration " may, if the proportion of employees concerned so justify, having regard to the repetition or seriousness of the facts found, order by reasoned decision the closure of the establishment used to commit the offense This may take the form of a stoppage of the company's activity on a construction site. The court rejects this plea, pointing out that if the terms of the contested decision do not specify the proportion of the employees concerned, the inspection report provides all the information and details on the facts on which the contested decision is based. In this respect, the Tribunal notes that the workforce made available by the subcontractors is 56 persons. It therefore considers that the decision is sufficiently reasoned and that the Prefect did not taint his decision with an error of assessment in the light of the above-mentioned provisions.

Rule 3: The proportionality of the sanction is not assessed in view of the fact that the offense concerns staff made available by subcontractors

The applicant also relied on the disproportionate nature of the prohibition and that it applied to all employees while the infringements founding the disputed measure concerned only employees of subcontractors. However, the judge notes that the subordination link between the applicant and the employees made available by the subcontractors led to the conclusion that SAPE SAS was the employer of the said employees. Consequently, he considers that the prohibition of access to construction sites for a period of one month is not disproportionate.