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.
Council Directive 96/71/EC on the posting of workers in the framework of the provision of services was transposed into Irish law as a miscellaneous provision of the Protection of Employees (Part-time Work) Act 2001. The Act provides that the full range of Irish employee protection legislation applies to workers posted to work in, or otherwise working in the State.
As a result of the concerns that the framework Directive (Council Directive 96/71/EC) was not being fully complied with, the European Commission adopted additional legislation to provide for improved monitoring of posting situations and to improve compliance with existing rules on posted workers. A new Directive, 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 was adopted in May 2014. The new Directive was transposed into Irish law on 28 July 2016 in the form of S.I. 412 of 2016 - European Union (posting of Workers) Regulations 2016.
The key measures introduced in these Regulations include:
- a new 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 new 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;
- the creation of 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;
- 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 incurred in another Member State by a service provider in the Member State in which the service provider is based.
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.
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 new 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.
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.)
Further information, including a definition of Posted Workers, may be found here.
Wages, Sick Pay and Pension Obligations
Please see the link below for legally binding sectoral collective agreements.
