The European Union (Posting of Workers) Regulations have been signed into law as of 27 July 2016, strengthening the enforcement of employment rights for posted workers in Ireland in a number of ways. The Regulations are a must read for all employers of posted workers and for all contractors in the construction industry.
Posted workers are workers who normally work in another Member State but for a limited period, carry out work in Ireland.
Contractors who themselves employ posted workers can expect the general provisions of the Regulations to apply to them. The Regulations in fact go further, however, and apply in a specific way to contractors whose sub-contractors employ posted workers. They impose liability on contractors for pay due to any posted workers employed by its sub-contractors, where the statutory required minimum standards of pay are not met by the sub-contractor. The posted construction industry worker can bring a complaint against both his or her direct employer (the sub-contractor) and also the contractor where he or she has not been paid the statutory minimum rates of pay or has not received remuneration due to him or her for work done. To avoid liability, the contractor must be able to show that it took all reasonable steps to obtain from the subcontractor:
- a copy of the acknowledgement from the Workplace Relations Commission (the "WRC") to evidence that the WRC has received notice from the sub-contractor of the posting of the relevant workers (a requirement under the Regulations);
- a list of all persons employed by the subcontractor and specific details relating to their employment by the sub-contractor;
- a written assurance from the subcontractor that he or she will pay the posted worker as required by law; and
- copies of the wage records, time sheets and proof of payment for each posted worker employed by the sub-contractor.
More generally the Regulations appoint the WRC as the competent authority in the State to oversee and enforce the implementation of the Regulations, to which any complaints under the Regulations must be brought and to which all information, notifications and recovery of fines and penalties must be directed.
Of general application also, service providers established in another EU Member State, who place posted workers in Ireland are obliged to provide certain information which will allow the WRC to monitor posting activity to ensure compliance with posting rules. The information required includes details of the service provider and the posted work, the posted worker's contract of employment or statement of terms & conditions of employment, his or her payslips, time sheets and proof of payment of wages.
Any service provider who fails to comply with its obligation in this respect is liable, on summary conviction to a Class A fine and on indictment to a fine not exceeding 50,000. Where the offence can be attributed to a director of a body corporate, the director may be held personally liable.
All those affected by the new Regulations are encouraged to become familiar with their requirements and to be equipped to comply.