European Union (Posting of Workers) Regulations 2016

8 August 2016 IR Circ: 2016/03

TO: ALL MEMBERS

Re: European Union (Posting of Workers) Regulations 2016

On 27 July 2016, the European Union (Posting of Workers) Regulations 2016 transposed into Irish law EU Directive 2014/76/EU on the enforcement of Directive 96/71/EC concerning the posting of workers.

The Regulations ensure compliance and the enforcement of employment rights of Posted Workers and also provide for subcontracting liability in the Construction Industry.

Who are Posted Workers?

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.

The Posted Workers Directive (Directive 96/71/EC)

The Posted Workers Directive 96/71/EC was introduced to balance the freedom to provide services across the European Union Market by ensuring that the rights and working conditions of posted workers are protected. The framework Directive 96/71/EC concerning the Posting of Workers was transposed into Irish law by way of section 20 of the Protection of Employees (Part-Time Work) Act 2001. This framework Directive provides that posted workers are entitled to the same statutory employment rights in the country to which they are posted.

The Enforcement Directive (Directive 2014/67/EU)

Directive 2014/67/EU on the enforcement of The Posted Workers Directive 96/71/EC was adopted by the EU in May 2014 and Ireland has now transposed the Directive into Irish Law through Ministerial Regulation. The Directive was implemented by the EU following concerns raised by some Member States that the protections established in the 1996 Framework Directive were not being complied with. The Enforcement Directive introduces a range of compliance measures with regard to the rules that apply to posting and enables posted workers to enforce their employment rights and deal with abuses of the posting rules set down in the Framework Directive.

Implementation of the Enforcement Directive

The Regulations have now been published in the form of a Statutory Instrument and provide for the following:

1. The Irish government have implemented a number of measures, which set requirements on employers posting workers to Ireland in order to ensure effective compliance with the Framework Directive and Enforcement Directive.

The measures provided for are as follows:
a. To notify the Workplace Relations Commission (WRC) Inspectorate with details of each posting, including:
i. The identity of the service provider;
ii. The anticipated number of clearly identifiable posted workers;
iii. The anticipated duration, envisaged beginning and end date of the posting of each worker;
iv. The address(es) of the workplace to which each worker is to be posted; and
v. The nature of the services justifying the posting
b. The requirement to keep appropriate records including contracts of employment, payslips and timesheets and proof of payment of wages in an accessible and clearly identified place in this jurisdiction;
c. The requirement to provide the documents/records referred to under b. above to the relevant authorities, within one month of their request.
d. The requirement to provide, if requested to do so, a translation of the documents referred to in b. above; and
e. The requirement to designate a person to liaise with the Irish authorities for the purpose of monitoring of compliance with the posting rules.

Subcontracting Liability

2. Stemming from the Enforcement Directive, the Irish government have introduced the statutory measure of “subcontracting liability” in the construction sector. This means posted workers can claim unpaid wages from the contractor one step up the supply chain from the direct employer. Therefore, the employer and the main contractor are jointly and severally liable for any amount of remuneration outstanding.

3. A posted worker may present a complaint to the WRC naming both his/her employer and the main contractor one step up the supply chain as co-respondents to the Director General of the WRC, that he/she has not been paid “net remuneration” in accordance with the protections afforded to Posted Workers as provided for in the Protection of Employees (Part-Time Work) Act 2001.

4. In accordance with the Regulations, “net remuneration” means the statutory minimum hourly rate in accordance with the National Minimum Wage, or fixed under any Employment Regulation Order (ERO), or Sectoral Employment Order (SEO), or Registered Employment Agreement (REA) in line with the Industrial Relations (Amendment) Act 2015.

5. It shall be a defence for the main contractor to demonstrate that they have exercised due diligence. In demonstrating due diligence, the main contractor will need to establish that the direct service provider with whom it has contracted is legitimate and has a good track record in paying their employees. Therefore, the main contractor will be required to demonstrate that he or she has taken all reasonable steps to obtain the following information from the employer of the relevant posted worker:
a. A copy of the acknowledgement of the employer’s notification to the competent authority in accordance with the obligations outlined at 1. (a- e) above,
b. A list of all persons employed by him or her to carry out work under the contractual relationship between the main contractor and the employer, and in respect of each person, his or her PPSN, date of birth, job description, nationality, start date and end date of posting, gross weekly wage and normal number of hours to be worked per week,
c. A written assurance that he or she will pay the worker’s net remuneration,
d. Once per month during the period of the contract, wage records, time sheets and proof of payment (EFT details) in respect of the worker for each pay period.

Where a posted worker takes a case to the WRC for unpaid wages, the Adjudication Officer will be obliged to take into consideration whether or not the main contractor one step up the supply chain has taken all reasonable steps to comply with these requirements when deciding if the defence of due diligence can be successfully invoked by the main contractor as a defence to a complaint.

The Department has confirmed that the Minister’s policy is to extend subcontracting liability to non-posted workers in the future. Should this occur, it will have a major impact on the construction industry. We will keep you advised of any developments.

Where members are sending workers to work in another EU Member State on a temporary basis, they should ensure they are aware of the host Member State’s requirements under the Enforcement Directive. The host Member State will have taken their own policy approach on the Directive.

The above information is also available on the CIF website at www.cif.ie.

If you have any queries on the implementation of the Enforcement Directive, please contact the federation.

Yours Faithfully,

Cheryl Treanor
Executive
Industrial Relations and Employment Services