What you need to know on requirements, obligations and penalties for non-compliance when Posting workers to Ireland.
Ireland has transposed EU Directive 2018/957 into law on 1 October 2020 through the S.I. 374/2020. This regulation aims solely at providing for a small number of definitional clarifications and added protections to Ireland’s transposition of the original 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, i.e. S.I. 412/2016.
Prior requirement on foreign service providers when posting workers to Ireland
The Workplace Relations Commission (WRC) is the competent authority in Ireland for posted worker issues. So, foreign service providers must notify the WRC, using a prescribed form of declaration every posting of workers, regardless of its duration. The Form of Declaration must be submitted via post or e-mail to the WRC no later than the date of beginning of the work in Ireland.
Though the form of declaration, foreign companies must provide certain information, such as the name and address of the posting company, the workplace address, the personal details of the posted worker(s) and so forth.
In addition, the foreign company should indicate the name and address of the person designated to liaise with the competent authority to receive requests for information from the WRC and to send/receive information and documentation and to engage with the WRC in the event of an inspection.
Finally, if a posting is extended beyond the projected end date contained on the Form of Declaration submitted, an amended Form of Declaration is required containing the new end date for the posting.
Working and salary conditions in Ireland
The EU Posted Workers Directives provide that a worker posted to the territory of a Member State is guaranteed the terms and conditions of employment that employees are guaranteed under the law of that Member State.
In Ireland, a posted worker is hence entitled to a minimum wage rate, an average working week of no more than 48 hours, a daily rest period of 11 consecutive hours, a weekly rest period of 24 consecutive hours per seven days, and 30-minute break every 6 consecutive hours of work.
With respect to the minimum wage rate, Ireland has a legally binding National Minimum Wage (NMW) Rate since 2000, which depends on the age of the worker. From 1 January 2023, the NMW for employees over 20 years amounts to €11.30/hour. Allowances specific to the posting can be considered to be part of remuneration, unless they are not just a reimbursement of expenditure, such as expenditure on travel, board and lodging.
In addition, there are agreements in place for certain industries which set specific terms and conditions for those who are covered by them (eg. in the cleaning industry, security industry).
Storage of the posting documents
Under Irish law, a foreign company must keep and make available at a identified place certain documents, in paper or electronic form, for the duration of the period of the posting, such as:
- The posted worker(s)’s contract of employment;
- Payslips or equivalent documents;
- Time sheets, or equivalent documents, indicating the beginning, end and duration of daily working time, and
- Proof of payment of wages.
In case of inspection, the employer must provide the competent authority with the above-mentioned documents, where necessary translated into English language. The deadline to provide all the required documents is 1 month after the receipt of the request.
Non-EU citizen workers to Ireland
A non-EU national who is lawfully resident and legally employed in another EU member state may be allowed to work on a temporary basis for that employer in Ireland, without the need to obtain a work permit. However, also national provision concerning immigration issues must be taken into consideration. The Republic of Ireland establishes five different types of permits, which are used in specific cases.
In case of non-EU workers sent to Ireland on a short-term basis (more than 14 days in a 12-months period), the more appropriate type of permit could be the so-called a Van der Elst visa. However, certain conditions should be satisfied.
Social security in Ireland
Pursuant the European Regulation 883/2004, posted workers to Ireland may continue to be covered by the social security of the Member State where the employer is based.
The posting company must apply for an A1 Certificate to the competent social institution for their posted worker, who should hold it for the whole period of his posting to Ireland.
Penalties in case of non-compliance with Irish obligations when posting workers
Workers posted in Ireland from other EU Member States have the protection of all Irish employment legislation in the same way as employees who have an Irish contract of employment. As a matter of fact, the Protection of Employees (Part-Time Work) Act 2001 states that all employment legislation which confers rights or entitlements on an employee applies to a posted worker in the same way that it applies to any other employee.
Any breaches of such legislation may entail penalties. Among others, a failure to submit a Form of Declaration is a criminal offence. A fine of up to €5,000 may be imposed upon summary conviction.