The European Union (Posting of Workers) Regulations 2016 (the "Regulations")
were signed into law in Ireland on 27 July 2016, transposing the most recent EU
Directive in this area. "Posted workers" are individuals who are
employed in one EU Member State, but are posted by their employer to work in
another Member State on a temporary basis. The Regulations seek to ensure that
posted workers are protected in respect of their employment law rights in
Ireland, and to strengthen the enforcement mechanisms where those rights are
breached.
Background and Recap
Posted workers have been afforded certain protections in the EU since the
adoption of the Posted Workers Directive 96/71/EC ("PWD"). The
purpose of this 1996 Directive was to address concerns arising from the
increase in cross-border services, such as:
1. the exploitation of foreign
workers where inferior terms were applied to them in a host country;
2. the undermining of minimum
local terms and conditions by the use of cheap foreign labour (known as 'social
dumping'); and
3. the question of which
country's laws would apply when a worker was posted from his/her own Member
State to another Member State.
Under the PWD, Member States are obliged to guarantee to posted workers
certain minimum terms and conditions of employment as are received by
non-posted workers in the host country. These include maximum work periods,
minimum rest periods, minimum paid annual holidays and minimum rates of pay.
This is provided for in Irish law in the Protection of Employees (Part-Time
Work) Act 2001 (a somewhat anomalous and misleading place considering that the
rules apply to all posted workers no matter whether they are full-time or
part-time). Under this legislation, workers, irrespective of their nationality
or residence, who are working in Ireland or who are working under a contract of
employment providing for their being employed in Ireland, have the benefit of
the vast majority of Irish employment law rights (and in fact this provision
goes far beyond the minimum requirements of the PWD).
Despite these existing protections, concerns were raised that the PWD was
not being fully complied with. As a result, an updated EU Directive was passed
in 2014 to strengthen the regime concerning posted workers, the provisions of
which are transposed in Ireland in the new Regulations.
Key measures from the new Regulations
The key measures are:
- The Workplace Relations Commission ("WRC") is Ireland's
designated "competent authority" and "central liaison
office" for the purposes of both Posted Workers Directives.
- Before commencing the services in question, service providers posting
workers to Ireland must now:
- make a declaration to the WRC (in English and using the form set out
in the Regulations) setting out certain information, including the
identity of the service provider, the number of posted workers, the
duration of the postings, and the addresses of the relevant workplace(s)
in Ireland for the posted workers;
- maintain for inspection, at a place identified to the WRC, copies of
contracts of employment, payslips, time sheets and other information
relating to the posted workers; and
- designate a person to liaise with the WRC.
Where the WRC receives a declaration that is in compliance with the
Regulations it will issue an acknowledgment to the service provider.
- Failure to comply with the new declaration rules is an offence and can
lead to fines of up to €50,000. If the offence is committed by a body
corporate, then its directors, managers or other officers can be held
directly liable.
- A concept of 'subcontracting liability' has been introduced with
regard to the construction sector. This means that where a posted worker
does not receive the required minimum rates of pay from his/her direct
employer (the subcontractor), the contractor one step up the supply chain
can now also be held liable and sued by the employee (in addition to the
direct employer). The contractor can avoid liability by showing that it
took all reasonable steps to ensure the subcontractor was compliant with
its obligations, and obtaining certain information from the subcontractors
as prescribed in the Regulations.
- A simplified and strengthened process has been put in place for a
relevant authority in one Member State to pursue a service provider based
in another Member State for breach of the rules on posted workers. This
allows for a notification to be made from one such authority to the
relevant authority in another Member State (being the WRC in Ireland) to
inform it that certain penalties or fines have been levied on a service
provider, and that authority receiving the notification will then pursue
and recover the relevant penalty or fine from the service provider
resident in its own Member State.
Conclusion
It is crucial that employers posting workers to Ireland comply with the
newly-prescribed declaration obligations detailed above in order to avoid the
new regime of fines. Employers/contractors in the construction industry should
also be aware that if subcontractors fail to comply with certain obligations
towards their posted workers, the employer/contractor itself can now also be
held jointly liable with the subcontractor.
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