S.I. No. 412/2016 - European Union (Posting of Workers) Regulations 2016.

1. Maximum work periods and minimum rest periods

2. Minimum paid annual holidays

3. The minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes

4. The conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings

5. Protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people

6. Equality of treatment between men and women and other provisions on non-discrimination

GIVEN under my Official Seal,

27 July 2016.

MARY MITCHELL O’CONNOR T.D.,

Minister for Jobs, Enterprise and Innovation.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

The purpose of these Regulations is to transpose into Irish law Directive 2014/67/EU (“the Directive”) on the enforcement of Directive 96/71/EC (“the Framework Directive”) concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”).

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 Directive contains a number of new measures aimed at improving co-operation between Members States and their competent authorities to ensure the effectiveness of the protections provided for in the Framework Directive. Both Directives put in place a framework for the provision of services by posting workers, and create the conditions to enable those posted workers to enforce their rights.

Regulation No. 1 provides that these Regulations may be cited as the European Union (Posting of Workers) Regulations 2016 and will come into force on the date of signature by the Minister. Regulation No. 2 provides the interpretation for the Regulations. Regulation No. 3 provides that the Workplace Relations Commission is the competent authority in the State for the purposes of the Directive and the central liaison office for the purposes of the Framework Directive.

Regulation No. 4 specifies the information requirements that a service provider which is posting workers in the State will have to comply with in order to ensure effective compliance with the Directive and the Framework Directive. Regulation No. 5 provides for the penalties which apply when found guilty of an offence for failure to comply with the information requirements set out in Regulation No. 4. Regulation No. 6 provides that the competent authority in the State (i.e. the Workplace Relations Commission) shall be obliged to issue an acknowledgement to a service provider upon making a declaration that complies with the information requirements in Regulation No. 4.

Regulation No. 7 relates to posted workers in the construction sector and subcontracting liability. This concerns arrangements where the posted worker’s employer is the direct subcontractor of a contractor. This Regulation introduces the concept of subcontracting liability by providing that where a posted worker in the construction sector is not paid the applicable statutory rates of pay by their direct employer (the subcontractor) the contractor one up the supply chain, can be held liable either in addition to or in place of the employer. Regulation No. 8 provides that where the posted worker makes a complaint against the employer’s contractor pursuant to Regulation No. 7, the contractor can rely upon the defence of due diligence. This means that where the contractor can demonstrate they have carried out due diligence in appointing the posted worker’s employer to discharge a contract, they will not be liable for claims against them for unpaid statutory remuneration. Regulation No. 9 makes provision for the complaint and redress procedures which will allow a posted worker to pursue an action to the Workplace Relations Commission against both the direct employer and the contractor one up the supply chain where the worker concerned has not been remunerated to the level required under the Framework Directive.

Regulation No. 10 transposes the requirements in Article 10 of the Directive. Article 10 provides that Member States shall be obliged to ensure that effective and adequate inspections are carried out in their territory in order to monitor and control compliance with the provisions and rules laid down in the Framework Directive. In particular, Article 10 provides that the inspection of obligations in the Framework Directive shall be carried out in the host Member States through a system of random and risk based inspections.

Regulation No. 11 implements Chapter VI of the Directive and includes provisions to allow for the cross-border enforcement of financial administrative fines and/or penalties. Competent authorities in other Member States can request that the competent authority in the State (i.e. the Workplace Relations Commission) to enforce financial administrative penalties and fines against service providers established in the State.

Regulation No. 12 makes provision for a necessary amendment to the

Workplace Relations Act 2015

to provide that complaints referred under these Regulations will be the subject of the WRC adjudication and redress structures established under the aforementioned legislation.

1 OJ No. L 159,28.5.2014, p.11

2 OJ No. L 18, 21.1.97, p.1

7. renovation

8. repairs

9. dismantling

10. demolition

11. maintenance

12. upkeep, painting and cleaning work

13. improvements

Schedule 3

Regulation 10

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

29

th 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 2014

1

hereby make the following regulations

Citation