European Union (Posting of Workers) Regulations 2016.

• Jurisdiction: Ireland

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 29th July, 2016.

I, MARY MITCHELL O’CONNOR TD, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2014/67/EU of the European Parliament and of the Council of 15 May 20141 hereby make the following regulations:

Citation

1. These Regulations may be cited as the European Union (Posting of Workers) Regulations 2016.

Interpretation

2. (1) In these Regulations—

“Act of 1946” means Industrial Relations (Amendment) Act 1946 (No. 26 of 1946);

“Act of 2000” means National Minimum Wage Act 2000 (No. 5 of 2000);

“Act of 2015” means Workplace Relations Act 2015 (No. 16 of 2015);

“competent authority” means Workplace Relations Commission;

“contractor”, in relation to a posted worker, shall be construed in accordance with Regulation 7;

“Directive” means Directive 2014/67/EC of the European Parliament and of the Council of 15 May 2014;

“Framework Directive” means Directive 96/71/EC of the European Parliament and of the Council of 16 December 19962 ;

“net remuneration”, in relation to a posted worker, means the statutory minimum hourly rate of pay—

(a) declared by order under section 10D (inserted by section 8 of the National Minimum Wage (Low Pay Commission) Act 2015 (No. 22 of 2015)) of the Act of 2000, or

(b) that is—

(i) fixed under an employment regulation order made under section 42C (inserted by section 12 of the Industrial Relations (Amendment) Act 2012 (No. 32 of 2012)) of the Act of 1946, or

(ii) payable under any registered employment agreement or sectoral employment order (each within the meaning of the Industrial Relations (Amendment) Act 2015 (No. 27 of 2015)),

applicable to activities referred to in Schedule 2, that applies to the class of posted worker,

less the amount of any deduction (or payment) which is required to be made by or under any statute or statutory instrument;

“posted worker” means a worker who normally works in another Member State but, for a limited period, carries out his or her work in the State.

(2) A word or expression used in these Regulations that is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Directive.

Competent authority and liaison office

3. The Workplace Relations Commission is—

(a) the competent authority in the State for the purposes of the Directive, and

(b) the central liaison office for the purposes of the Framework Directive.

Administrative requirements and control measures

4. (1) A service provider established in another Member State who temporarily posts workers in the State shall—

(a) make a declaration (in the English language and using the form set out in Schedule 1) and furnish it to the competent authority no later than the date on which he or she commences providing the service, containing—

(i) the identity of the service provider,

(ii) the anticipated number of clearly identifiable posted workers,

(iii) the anticipated duration and envisaged beginning and end dates of the posting of each worker,

(iv) the address of the workplace to which each worker is to be posted, and

(v) the nature of the services justifying the posting,

(b) keep at a place identified by the service provider to the competent authority and make available to the competent authority at its request, in paper or electronic form, for the duration of the period of the posting, in respect of each posted worker—

(i) his or her contract of employment or a written statement of terms of employment (within the meaning of section 3 of the Terms of Employment (Information) Act 1994 (No. 5 of 1994)) or an equivalent document,

(ii) his or her payslips or equivalent documents,

(iii) where relevant, time sheets, or equivalent documents, indicating the beginning, end and duration of his or her daily working time, and

(iv) proof of payment of wages,

(c) after the period of the posting and at the request of the competent authority, deliver to the competent authority, within a period of one month after the request, the documents referred to in paragraph (b) and, where necessary, a translation of those documents into the English language, and

(d) designate a person to liaise with the competent authority and to send out and receive documents and notices as necessary be.

Offence

5. (1) A service provider who fails to comply with Regulation 4 commits an offence and is liable—

(a) on summary conviction, to a class A fine, or

(b) on conviction on indictment, to a fine not exceeding €50,000.

(2) Proceedings for an offence under paragraph (1) may be brought summarily by the competent authority.

(3) If an offence under Regulation 4 is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person who is a director, manager, secretary or other similar officer of the body, or is a person who was purporting to act in any such capacity, that person as well as the body corporate commits an offence and is liable to be proceeded against and punished as if that person had committed the first-mentioned offence.

(4) If the affairs of a body corporate are managed by its members, paragraph (3) applies in relation to the acts and omissions of a member of the body in connection with the member’s functions of management as if the member were a director or manager of it.

Acknowledgement of declaration

6. Where the competent authority receives a declaration from a service provider that complies with Regulation 4(1)(a) it shall give an acknowledgement to the service provider concerned.

Subcontracting liability

7. (1) This Regulation applies in respect of a contracting chain operating in one or more of the activities mentioned in Schedule 2.

(2) Subject to Regulation 8, where the employer of a posted worker is a direct subcontractor of a contractor and the posted worker has not received net remuneration due to him or her for work under the contractual relationship between the contractor and the posted worker’s employer, the posted worker’s employer and that contractor are jointly and severally liable for the amount of net remuneration outstanding.

Due diligence

8. A contractor shall not be liable for any outstanding net remuneration due to a worker by virtue of Regulation 7 where the contractor shows that he or she has taken all reasonable steps to obtain from the employer of the relevant posted worker—

(a) a copy of the acknowledgement of the employer’s declaration to the competent authority issued under Regulation 6,

(b) a list of all persons employed by him or her to carry out work under the contractual relationship between the contractor and the employer, and in respect of each person, his or her personal public service number (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, and

(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.

Presentation of complaint under Act of 2015

9. (1) A posted worker referred to in Regulation 7 may present a complaint, naming both his or her employer and a contractor as co-respondents, under section 41 of the Act of 2015 to the Director General (within the meaning of that Act) that he or she has not been paid net...