Posted Workers

Free Movement of Persons

Free movement of workers is a fundamental principle of the Treaty on the Functioning of the European Union. Article 45 provides that: -

Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.

EU citizens and third country nationals legally resident in the territory of a Member State are entitled to:

look for a job in another EU country,
work there without needing a work permit,
reside there for that purpose,
stay there even after employment has finished, and
enjoy equal treatment in access to employment, working conditions and social and taxation matters.

What is a Posted Worker?

A "posted worker" is an employee who is sent by his/ her employer to carry out a service in another EU Member State on a temporary basis. Council Directive 96/71/EC defines a posted worker as a ‘person who, for a limited period of time, carries out his or her work in the territory of an EU Member State other than the State in which he or she normally works’. The definition does not include individuals who decide of their own accord to seek employment in another Member State, seagoing personnel in the merchant navy or the self-employed.

Legislation

Council Directive 96/71/EC on the posting of workers in the framework of the provision of services was transposed into Irish law by means of the Protection of Employees (Part-time Work) Act 2001. This provides that the full range of Irish employee protection legislation applies to workers posted to work, or otherwise working, in the State.

Concerns in relation to the enforcement of Council Directive 96/71/EC led to the adoption in May 2014 of EU Directive 2014/67/EU on the enforcement of Directive 96/71/EC (“the Framework Directive”) concerning the posting of workers in the framework of the provision of services which was transposed into Irish law on 28 July 2016 by means of S.I. 412 of 2016 - European Union (posting of Workers) Regulations 2016.

The 2016 Regulations provide for:

a requirement on foreign service providers when posting workers to Ireland to notify the Workplace Relations Commission (WRC). The service provider must provide certain information (using the prescribed Form of Declaration below) which will enable the WRC to monitor posting activity and ensure compliance with posting rules;
a subcontracting liability in the construction sector 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 may also be held liable for the shortfall in the net remuneration payable;
a right for a posted worker to refer a complaint to the Director General of the WRC naming both the direct employer and the contractor one step up as respondents;
a defence of due diligence for the contractor in any complaint 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;
measures which allow for the enforcement of cross border financial administrative penalties and fines incurred in another Member State by a service provider in the Member State in which the service provider is based.

Directive (EU) 2018/957, which amends Directive 96/71/EC concerning the posting of workers in the framework of the provision of services was adopted in June 2018. The Directive was transposed into Irish law on 1 October 2020 in the form of S.I. 374 of 2020 European Union (Posting of Workers) (Amendment) Regulations 2020.

The key changes introduced by the new Directive include:

the introduction of a time limit of 12 months on the period of posting, whereby a posting that goes on beyond that attracts the same rights as locally sourced workers;
an expansion of employment rights protections beyond what was provided in the original Directive, including access to collective agreements, where applicable,
provision that workers posted by “a temporary employment undertaking” or “placement agency” hold the same rights as employees in the undertaking to which they are posted.

As Ireland’s transposition of the original Directive provided more than the required minimum protections for posted workers, many of the requirements of the new Directive had already been met. These amending Regulations provide for a small number of necessary definitional clarifications and added protections.

Finally, the European Union (Transparent and Predictable Working Conditions) Regulations 2022, which became law on 16 December 2022, transpose EU Directive 2019/1152 of the European Parliament and of the Council of 20 June 2019 on Transparent and Predictable Working Conditions in the European Union.

Section 4(1) of the Term of Employment (Information) Act 1994 provides that employees who work outside the State for a period of at least one month must receive a written statement of their terms of employment. The 2022 Regulations provide that, where such employees are posted workers, this statement must contain the following additional particulars: -

a) the remuneration to which the employee is entitled in accordance with the applicable law of the host Member State.
b) Where applicable, any allowances specific to the posting and any arrangements for reimbursing expenditure on travel, board and lodging, and
c) The link to the official national website developed by the host Member State concerning the posting of workers and the provision of services.

Declaration Form

The Form of Declaration may be submitted to:

Posted Worker Liaison Unit
Workplace Relations Commission
O'Brien Road
Carlow
R93 E920
Republic of Ireland

or e-mailed to WRCpostedworkers@workplacerelations.ie

Guidance notes on how to complete the Form of Declaration may be found here.

Failure to submit a Form of Declaration is a criminal offence. A fine of up to €5,000 may be imposed upon summary conviction.

The Form of Declaration must be submitted no later than the date on which the employee commences work in Ireland.

The Posted Worker Liaison Unit of the Workplace Relations Commission also acts as the National Liaison Office and competent Authority in Ireland, under the European Posting of Workers Directive.

This Unit is the contact point for

authorities from other Member States,
companies that post workers,
posted workers themselves.

The Unit also

ensures that information on terms and conditions of employment as they apply to posted workers is readily and easily available,
monitors compliance with terms and conditions of employment,
replies to requests from public authorities for information on the transnational hiring-out of workers, including abuses or possible cases of unlawful transnational activities,

Telephone queries may be directed to our Information Line at 0818 80 80 90 or 00 353 59 917 8990 (Opening Hours 09:30 to 17:00 - Mon. to Fri.)