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The revised EU Posted Workers’ Directive: how is it implemented in Ireland?

Written by
Lewis Silkin, widely recognised as Ireland’s leading specialist employment law practice
Authors
Declan
Declan Groarke
Solicitor - Ireland
Lewis Silkin (Ireland)
Ireland
08.03.21
2
What has changed in Ireland with the implementation of the revised Posted Workers Directive? This article provides guidance.

Directive (EU) 2018/957, amending Directive 96/71/EC was adopted in June 2018. The new Directive was transposed into Irish law on 1 October 2020 in the form of S.I. 374 of 2020 European Union (Posting of Workers) (Amendment) Regulations 2020.

Ireland’s transposition of the original Directive (96/71/EC) provided more than the required minimum protection for posted workers, providing that the full range of Irish employee protection legislation be applied to workers posted to work in the State.

Subsequently, Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services was transposed into Irish law on 28 July 2016 in the form of S.I. 412 of 2016 – European Union (posting of Workers) Regulations 2016. This provided for improved monitoring of posting situations and sought to improve compliance with existing rules on posted workers. Accordingly, under Irish law, any foreign service provider posting workers to Ireland must notify the Workplace Relations Commission (WRC) when doing so. It must also provide certain information when notifying the WRC of its posting (using a prescribed form of declaration) which enables the WRC to monitor the posting activity and to ensure compliance with posting rules.

As Ireland’s transposition of the original Directive 96/71/EC provided more than the required minimum protections for posted workers, many of the requirements of the new Directive 2018/957 had already been met. However, these amending Regulations provided for a small number of necessary definitions, clarifications and additional protections set out below.

Long-term posting rules

After 12 months, posted workers are entitled to the same rights as locally sourced workers. Employment right protections have also been expanded beyond what was provided in the original Directive (96/71/EC), and now includes access to collective agreements where applicable.

Allowances and expenses

Allowances specific to the posting are considered to be part of remuneration, provided that they are not paid to reimburse expenses actually incurred. If it is not possible to determine the nature of the allowance, it is presumed to be paid as a reimbursement of expense.

Other

Additional provision has been included so that workers posted by ‘a temporary employment undertaking’ or ‘placement agency’ must also be notified to the WRC and must also hold the same rights as employees in the undertaking to which they are posted.