Background

On the 28th July 2016, Ireland transposed EU Directive 2014/67/EU (“the Directive”) into law which enforces the EU Directive 96/71/EC concerning the posting of workers through the European Union (Posting of Workers) Regulations 2016 (the “Regulations”).
The aim of the Regulations is to ensure that workers posted to Ireland can avail of a greater level of employment law protections and have the ability to enforce the rights that posted workers are entitled to, if breached.

A “posted worker” is an employee who is sent by his/her employer to carry out duties of his/her employment, for a temporary period of time, in another EU Member State and will be relevant to, EU-based employers with posted workers in Ireland and Irish employers with posted workers at their EU operations.  It will also be relevant for contractors and subcontractors alike.

The Directive itself outlines specific situations which fall under its regulations and covers a vast range which should be examined to determine if the service provider has an obligation.
The key measures that are being introduced in the Regulations from an Irish perspective include:

1. Notification to the Irish Workplace Relations Commission (WRC)

On posting workers to Ireland, EU-based service providers must notify the WRC of the postings and provide certain information, such as the identity of the service provider, the anticipated number of posted workers and some other key details related to the postings. The notification must be in English and in a prescribed format.

The service provider must also designate a location to the WRC whereby it will hold and make available information related to the posted workers, including details of the terms and conditions of employment, pay slips, timesheets, and proof of payment of wages. The service provider should also designate a contact person to liaise with the WRC for document requests.

Changes to the posted workers original postings must also be communicated to the WRC on a timely basis.

The WRC will issue an acknowledgment to the service provider where it receives a declaration that it is in compliance with the regulations.

The notification to the WRC is in addition to any work permit requirements that may be applicable.

The Regulations do not specify a minimum duration for postings before the obligation to notify the WRC arises. Consequently, even though it may not be the intended target of the Regulations, strict compliance may require a declaration to be made for short-term (including same-day) business travellers whose activities fall into one of the specific situations mentioned within the Directive.

2. Introduction of subcontracting liability

This new regulation seeks to ensure that posted workers in the construction industry are paid the applicable statutory minimum rates of pay by their direct employer. If the applicable minimum statutory rates are not paid by the subcontractor, the main contractor can be held liable for any shortfalls despite not being the direct employer of the posted workers.

However, there is an option for contractors to remove any liability where any claims for non-payment of statutory rates of pay arise. The main contractor may claim this defence of due diligence if they can show that they have taken all reasonable steps to ensure that the subcontractors have complied with the Regulations by requesting a copy of the acknowledgement of the subcontractors declaration to the WRC, a list of all persons employed including details such as a PPSN, date of birth, details of posting and a written assurance from the subcontractor that the worker will be paid.

Deloitte’s view

The above Regulations are based on EU legislation, therefore, will have wide ranging scope.

It is vital that EU based employers posting workers to Ireland comply with their obligations relating to posted workers as failure to comply is a criminal offence and a breach can result in a potential fine up to a maximum of €50,000. If the breach is committed by a body corporate, then its directors can be held directly liable.

Irish-based employers should also ensure that they comply with the local notification requirements if they are posting workers to other EU countries.

We offer a range of services designed to assist clients comply with their Irish obligations in this regard.