by Breda O'Malley September-14-2016 in Employment Law

What is a posted worker?

A posted worker is an employee who is sent by their employer to carry out a service in another EU member state on a temporary basis only. They do not become integrated into the workforce of the host member state.

Background

Further to existing EU legislation, the Posted Workers Directive 96/71/EC, posted workers have certain protections concerning their temporary service in a host EU member state. The earlier directive was introduced in circumstances where there had been an increase in cross-border services in the EU. It was felt that measures were necessary in order to combat certain risks to include the exploitation of foreign workers where inferior employment conditions were applied to them and minimum local conditions were ignored (this concept is known as 'social dumping'). It was also envisaged that the introduction of this directive would provide some certainty as to which national laws would apply to a worker posted to another member state.

The directive provides that although posted workers remain employees of the sending company and are thus subject to the national rules of the home member state, they are still entitled to a set of core rights in force in the host member state. These include:

  • minimum rates of pay
  • minimum paid annual leave
  • minimum rest periods
  • maximum working hours
  • health and safety considerations
  • equal treatment between men and women.

However, due to concerns that the earlier directive was not being fully complied with, the Commission proposed additional legislation in March 2016 to improve compliance levels and to provide for enhanced monitoring of posting situations.

2016 regulations – key features

The new regulations introduce a number of mechanisms which it is envisaged will enhance the protections available for posted workers while at the same time minimising the cost for employers. Key features include:

  • In Ireland, the Workplace Relations Commission (WRC) is the designated 'competent authority' and 'central liaison office' for the purposes of both EU directives.
  • If an employer is posting an employee to another member state on a temporary basis, that employer must provide certain information to the WRC before doing so which includes the identity of the service provider, the number of posted workers it proposes to send to Ireland, the nature of the services which justify the posting, the duration of the respective postings and the address of the workplaces in Ireland which the posted worker(s) will be sent to. This information is to be provided to the WRC in the form of a declaration, the format of which is set out in the regulations. The direct employer must also maintain copies of contracts of employment, payslips, time sheets and other information relating to the posted workers at a location which is made known to the WRC. Failure to comply with these rules can lead to fines of up to €50,000.
  • A posted worker may now complain to the WRC if they believe that the directives have been breached. In doing so, the worker may name both his/her direct employer and the contractor in Ireland as respondents in any such claim.
  • In relation to the construction sector exclusively, the concept of 'subcontractor liability' has been introduced. This means that both the direct employer and contractor may be held jointly liable for any unpaid wages due to the posted worker for work done under the contractual relationship between the Irish contractor and the direct employer. However, the Irish contractor can attempt to avoid liability by showing that it took all reasonable steps to ensure that the direct employer was compliant with its obligations under the legislation. The regulations set out in detail the criteria which the Irish contractor will have to satisfy before it may avail of this defence.

Practical impact of regulations

In order to avoid the significant fines which may now be imposed, it is essential that employers posting workers to Ireland must cooperate with the rules regarding notification to the WRC. In the construction industry in particular, both direct employers and Irish contractors need to remember that if the direct employer fails to comply with certain minimum obligations to their posted workers relating to pay, both the direct employer and the Irish contractor may be found liable. For this reason, the Irish contractor needs to ensure that it takes all reasonable steps to ensure that the direct employer was compliant with its obligations and should request evidence of this from the direct employer.

It is hoped that the introduction of these measures will strengthen the protections for posted workers in Ireland by obliging employers based in other EU member states to respect Irish employment law standards when sending employees to work temporarily in Ireland. This is essential so that business and workers can take full advantage of EU market opportunities. As Minister for Jobs, Enterprises and Innovation, Mary Mitchell O’Connor stated recently: “Posting workers to and from Ireland to fulfil contracts won is an essential element of a properly functioning EU single market. Our businesses need this market to work well”.

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About the Author

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.