Go around the Old Port to find a job as a waiter? Emmanuel Macron’s Pôle emploi advice, delivered during his long trip to Marseille, made people cringe… but also smile with its “old school” side. All it takes for Stephanie, who has been living in Marseille for two years, is a few clicks on a local Facebook group of bar and restaurant staff to see the ads. “Work in the restaurant industry, it’s easy to find when you’re in a big city, it’s the fastest. But you can also come across a lot of bad employers. »
Stéphanie no longer counts the services paid for with a slingshot, from hand to hand. Like this boss, in a large pedestrian square close to the Old Port, paying 50 euros a day’s work, for two services, lunch and dinner. “When you’re really struggling, it’s so much faster, so I often said yes when I have several years of experience,” she breathes. But she still prefers that to invoicing: “More and more, there are people who try to offer it, but despite the fifteen euros an hour, that doesn’t interest me. You have to pay the charges behind. And it blocks me from having to become a freelancer for that, I just want to work. I’m trying to develop my clothing brand, I don’t want to have lots of statuses right and left. If one day I create my own business, it will be for this activity. »
“We can no longer so easily pay a black employee”
For Clarisse, in her thirties, invoicing has become a way of life. “I started at university for occasional hostess missions in events, it’s quite practical for students who don’t want to commit to a job,” she says. Now, it often happens to him “to chain two hard weeks” as an extra in a bar-restaurant, to then work on his projects. “It allows me to choose my schedule,” she says. I can afford it, I don’t have children or heavy loads. And for the restaurants, it becomes complicated for them to take out cash to pay us, the alternative is to take people on account. »
The Urssaf, basically, does not say anything different: “Five years ago, contactless payment was not as generalized, and a significant part of the turnover in the catering industry was cashed in check or species, explains Christophe Mahé, head of the brigade for the fight against concealed work at Urssaf Paca. We can no longer so easily pay a black employee. He remembers his first inspection of a waiter employed in a bar under the status of autoentrepreneur. It was in 2011. “The frequency of recourse to self-employment is growing from 2015, but we have been on a real trend since the health crisis, he continues. The hotel and catering industry is a tense sector of activity, with a huge number of vacancies. Invoicing is one way to solve that, to allow them to fill a labor need. »
A hole in the racket
“Temporary work, apart from the fact that it is mainly developed in collective catering, is much too expensive, it costs me between 25 and 35 euros per hour, and I have no visibility on the profile I am recruiting” , assures Jean-Baptiste Vignau, owner of the Baletti, a fashionable bar-restaurant in the Old Port, and one of the founders of the Xtras application, a sort of “Tinder” for catering. “Young people have less and less appetite for permanent contracts and long assignments, there is this desire to manage their schedule, and weariness too. The employees don’t want to work for four years doing the same service, in the same musical atmosphere, with the same menu and the same clientele, so it’s up to us to work on these subjects too. »
Except that there is like a hole in the racket. When Marc Isidore, assistant to the Paca control department, scrolls through all the job offers available in Marseille, on one of the recruitment platforms specializing in the sector (Extracadabra, Brigad, Staffme, etc.), he opens a slightly the eyes. “You must have self-employed status for this mission”, is mentioned most of the time, even when you click on “server job” and not “extra missions”, for example. But for Urssaf, the use of self-employment in the hotel and catering industry, when it comes to employing someone, is quite simply illegal. Article L. 311-3 of the Social Security Code lays down the principle that employees of hotels, cafés and restaurants must be affiliated “to social insurance under the general scheme”. “It is therefore an obligation that these people be considered as employees”, translated into common language Marc Isidore. At least in Urssaf language.
“The standard remains the CDI, there is no debate on it”
Co-founder of Brigad, a platform launched in 2016, Florent Malbranche refutes the argument and curbs “the schizophrenic attitude of Urssaf, which could see the opposite as an opportunity to collect more contributions. “” The Code only says that when you are an employee, you must join the general system, it does not refer to independent work, he assures. We are a tool that connects companies and people who have chosen to be self-employed. Self-employment is a tax system, nothing else. “And to continue:” The standard remains the CDI, there is no debate on that. It’s just two ways of working that complement each other. As proof, he points to the average age of the candidates on Brigad. She is “35 years old, with a good 15 years of experience”: “These are people who know the sector very well and want to work differently. And companies need to find competent people and need flexibility as their activity fluctuates according to the seasons, the weather, etc. »
At Extracadabra, created in 2015, the profile of the candidates (all types of contracts combined) is more or less the same: 30 years old on average in the kitchen and 26 years old in the dining room. “The average mission is three days”, also underlines Rémi Boisson, one of the co-founders. “This free-lancing movement affects many professions. It allows you to manage your schedule, digital tools allow this, it’s a virtuous circle”, he explains, also advancing the financial added value: a minimum billing of 16 euros for a server or, according to his calculations, 13.50 euros once the autoentrepreneur has paid his expenses, “instead of 10 to 11 euros for a net employee”. Except that the autoentrepreneur does not contribute to unemployment insurance and, reminds Christophe Mahé of Urssaf Paca, he is not protected by the provisions of the Labor Code, on working time in particular.
“If a self-employed person overturns a fryer…”
“And if a self-employed entrepreneur overturns a fryer and leaves for serious burns, there it is not the same”, also warns Bernard Marty, president of Umih 13, federation of trades and industries of the hotel industry. “Self-employment, he believes, is a good solution to have employees quickly, for one-shots, but as long as nothing happens. You have to wrap things up. Discussions are also underway at the national level. On the issue of accidents at work, the platforms say they have chosen to insure self-employed entrepreneurs for three months in the event of incapacity for work. As for the legal insecurity for restaurateurs to use their service, the speech is intended to be reassuring. “There is case law on this subject”, assures Florent Malbranche. “There are a few checks, but that’s like everything, if the self-employed entrepreneur stays with the client for four months, it’s not the same story as if he replaces someone at a moment’s notice, argues Rémi Boisson . It has to be very punctual. This is our vision of things, we encourage restaurateurs to form a core team on permanent contracts. »
There remains the subject of the famous “link of subordination” which, in the uberisation of the world of work, makes it possible to qualify the working relationship between an employer and an employee. And to attribute to the latter the quality, or not, of employee. This is the whole point of the Deliveroo or Uber trials. When the platforms of the catering sector advance the freedom of the timetable, the Urssaf highlights the link of subordination and therefore, the existence in its eyes, of concealed work. “The kitchen is a very hierarchical environment, says Christophe Mahé. There is no independence in the production of its acts. Not to mention that a self-employed person is supposed to work with his own equipment, his own tools. This is not the case in a restaurant kitchen. In Paca, in case of control, the Urssaf will thus most often consider an employee under invoice as concealed work.
“No reason to increase the number of controls”, for the moment
“Like any fraudulent system, the information is beginning to spread, but we are faced with a fraud that replaces another, we do not see the rate of fraud increasing as such”, however nuance Christophe Mahé. Listening to him, the invoice finally comes to replace, in a certain way, the tax evasion that constitutes the “black payment”. “It’s a sector made up of a lot of small businesses,” he continues. Concretely, this is one of the axes on which we are working because we know that we can be effective in terms of control, on the other hand that does not justify increasing the volume for the moment. For this, we will go on very structured frauds, as in the construction industry for example. »
If the breath of self-employment in catering is not ready to fall, there are still enough zests of vagueness to see it continue to take its rightful place. Before, perhaps, a few new ingredients to the recipe.