‘Our German branch is sending some employees from that entity to our entity in Ireland for a temporary project. They will remain employed by the German entity and the project is short-term.  As these are EU employees, are there additional considerations we need to take into account for the duration of their time in Ireland? How do I handle it?’

The main issue to take into account in relation to these workers is that they will be considered “posted workers” and such workers are governed by the Posting of Workers Directive which was transposed into Irish law by virtue of SI 412/2016 – European Union (Posting of Workers) Regulations 2016.  Essentially, the Regulations provide that “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 employment relationship must remain with the undertaking making the posting, which I understand is the case here, as these employees will remain employed by the German entity, and the posting must be for a limited period, which I also understand is the case.

Regulation 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. In that regard, the German entity is required to fill out a declaration which requires to be furnished to the Workplace Relations Commission no later than the date on which the employee commences providing the service. Therefore, these declarations should be filled out as soon as possible and lodged with the Workplace Relations Commission and, other than that, the employees in question will not require any further documentation during their time here. A copy of the declaration can be found here:

https://www.workplacerelations.ie/en/Publications_Forms/Form-of-Declaration.pdf

We understand that some administrative exceptions are to be created by the WRC in the case of posted workers, particularly around multinationals with more than one establishment in the EU.  However, such exceptions have not yet been created and therefore there is currently the legal obligation to complete the declaration and submit it to the WRC.  More detailed information is set out below.

Law

An employer/service provider can post an employee to another EU member state and during this period, the employee will acquire the status of a "posted worker" and benefit from special working conditions and rights.

Working conditions

While posted to another EU country, the employee falls under the conditions and terms of employment of the host country. These relate to:

• minimum rates of pay: your wage may not be less than the local minimum wage or the wage set by binding collective agreements in your sector of employment, if these are in force in the host country
• maximum work periods and minimum rest periods
• health and safety at work
• conditions on hiring workers through temporary agencies
• employment conditions for pregnant women and young people
• equal treatment for men and women and other rules to prevent discrimination

An employer may also pay costs for travel, boarding and lodging in the EU country where the employee is posted, if this is foreseen in the home country's legislation. These allowances will have to be paid on top of the employee’s normal wage.

Host Country conditions and terms of employment (Ireland)

If you are an employer sending an employee to work in Ireland, then you are required to fill in the mandatory declaration as set out in Regulation 4 of the European Union (Posting of Workers) Regulations 2016. A service provider is obliged to then furnish the declaration to the competent authority (Workplace Relations Commission) no later than the date on which the employee commences providing the service. Failure to make this declaration exposes the service provider to criminal or administrative sanctions.

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.