27th July, 2016
The Minister for Jobs, Enterprise and Innovation, Mary Mitchell O’Connor TD and Minister for Employment and Small Business, Pat Breen TD today announced that the new European Union (Posting of Workers) Regulations 2016 have been signed into law.
This new legislation transposes the EU Directive on better enforcement of the posting of workers Framework Directive.
From today, a number of new measures strengthen the enforcement of employment rights for posted workers and ensure that foreign service providers respect labour standards applicable in Ireland.
On signing the new regulations Minister Mitchell O’Connor said: “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. These Regulations will help ensure workers posted to Ireland are better protected and can enforce the rights that posted workers are entitled to under the original Posted Workers Directive”
Minister Breen commented that “In transposing the Directive we have taken into account the views of respondents to the public consultation conducted earlier this year. The approach in transposing the Directive is to do so in a balanced manner.”
Minister Breen added, “The Directive is being transposed in a way that provides significantly strengthened protections for posted workers while minimising the cost on compliant employers”.
The key measures which are being introduced in these Regulations include:
- a new requirement on foreign service providers when posting workers to Ireland to notify the Workplace Relations Commission (WRC) - they must provide information which will allow the WRC to monitor posting activity and ensure compliance with posting rules;
- a new subcontracting liability in the construction sector is introduced to guard against posted workers being paid less than their minimum entitlements - where a posted worker in construction is not paid the applicable statutory rates of pay by their direct employer, the contractor one step up the supply chain can also be held liable;
- the creation of a right for a posted worker to refer a complaint to the Director General of the WRC naming both their employer and the contractor one step up as respondents;
- the introduction of a defence of due diligence for the contractor in any claim before the WRC - the Regulations set out in detail the test or criteria which the contractor will have to satisfy in order to avail of the defence of due diligence;
- new measures which allow for the enforcement of cross border financial administrative penalties and fines.
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Note for Editors:
The purpose of the European Union (Posting of Workers) Regulations 2016 is to transpose into Irish law EU Directive 2014/67/EU (“the Directive”) on the enforcement of Directive 96/71/EC (“the Framework Directive”) concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”).
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. Posted workers are a more significant issue for some Member States. The Member States receiving most posted workers in the EU are Germany, France and Belgium. Those sending out most posted workers are Germany, France and Poland.
The original Posted Workers Directive 96/71/EC aims to protect the basic employment rights of workers temporarily posted abroad to another Member State, by providing, inter alia, that posted workers must be paid at least the statutory minimum rates of pay applicable in the host Member State for the period of the posting. That Directive was transposed into Irish law by means of section 20 of the Protection of Employees (Part-Time Work) Act 2001 with the effect that posted workers currently enjoy the same protections as other workers under Irish employment law.
As a result of the concerns that the Framework Directive was not being fully complied with, the Commission proposed additional legislation to allow for improved monitoring of posting situations and to improve compliance with existing rules on posted workers. A new Directive, the Posted Workers Enforcement Directive (PWED) was adopted in May 2014.
The overall objective of the Enforcement Directive is to ensure that the rights of posted workers are respected and enforced, and to ensure more effective application of the rules applicable to posting through a range of measures including closer monitoring of compliance with the rules by competent authorities and closer and more effective cross-border co-operation to tackle fraud and abuse.
Ireland already has a comprehensive body of employment rights and industrial relations legislation, which together with the newly established structures and procedures of the Workplace Relations Commission (WRC), provide effective and robust arrangements for the protection of all workers, including posted workers. Member States do not necessarily have to introduce specific measures or legislate in the areas set out in the Enforcement Directive if their existing systems comply with the 1996 Framework Directive and the Enforcement Directive. However, the Directive introduces a number of new measures, which are not currently provided for under our existing arrangements.
The Department conducted a public consultation on the transposition of the Directive into Irish law which ran from 11th December, 2015 to 29th January, 2016.
The Minister has brought forward these Regulations to implement the Directive as effectively as possible such that the burden on compliant businesses is limited while adequate protection for workers is ensured.
The key measures which are being introduced in these Regulations include:
- The requirement on service providers when posting workers within Ireland to comply with obligations to provide certain information which will allow the competent authority within the State (i.e. the Workplace Relations Commission) to monitor posting activity and ensure compliance with posting rules.
- Measures to guard against posted workers not being paid their wages by introducing the concept of subcontracting liability – so where a posted worker in the construction sector is not paid the statutory minimum rates of pay by their direct employer (the subcontractor) the contractor one up the supply chain, can be held liable either in addition to or in place of the employer.
- The creation of a right for a posted worker to pursue both the contractor and the employer for the unpaid wages by referring a complaint to the Director of the Workplace Relations Commission.
- The introduction of a defence for the contractor in any claim before the WRC for unpaid wages to demonstrate that it has exercised due diligence in respect of the employer’s record of paying their employees. The Regulations set out in details the test or criteria which the contractor will have to satisfy in order to avail of the defence of due diligence.
- Measures which allow for the notification of cross border financial administrative penalties and fines. Competent authorities in other EU Member States can request that the competent authority in the State (i.e. the Workplace Relations Commission) to enforce financial administrative penalties and fines against service providers established in the State.
These Regulations are effective within the State from today.