Ireland: Posted workers

  • Observatory: EurWORK
  • Topic:
  • Posted workers,
  • Working conditions,
  • Industrial relations,
  • Published on: 07 Deireadh Fómhair 2010



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Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

This national contribution examines the situation in relation to posted workers in the Irish context as of May 2009. Ireland does not have specific legislation transposing the Posted Workers Directive (PWD). Rather, it was transposed under Section 20 of the Protection of Employees (Part-Time Work) Act 2001. Some commentators believe the Irish legislation does not comply with the PWD – especially in the wake of recent ECJ judgments – but the Irish Government insists that it does.

QUESTIONNAIRE

1. Posted workers: basic facts

1.1 Please provide basic data on the workers posted in your country:

a) number (by gender);

There is no quantitative information on the number of posted workers in Ireland.

b) distribution across sectors

No information as above.

1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.

No.

1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.

No.

1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.

No

1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.

Although there is no recent data or studies on the number of posted workers (either incoming or outgoing) relating to Ireland, the high level of foreign direct investment in Ireland and increased 'internationalisation' of personnel policy within some multinational companies suggests that such postings may be relatively common. A 1996 survey of 140 high-technology foreign-owned multinational company establishments in Ireland (McPherson and Roche 1996) found that there was a relatively substantial internationalisation of training and development for both managers and the workforce as a whole, and that this resulted in postings to other countries, usually for a period of less than one year (longer-term postings were rather rarer). However, the overall proportion of employees posted to other countries - mostly elsewhere in Europe and North America (broadly reflecting the home country of the multinationals surveyed) - for training and development purposes was quite low, with managerial and technically skilled personnel most affected. This survey was specifically concerned with high-technology establishments. It is doubtful whether these findings are applicable to other types of multinationals operating in Ireland. Lower technology companies which compete on the basis of low cost, low value-added activities might be less inclined to promote the international mobility of personnel for training and development purposes.

2. Regulation on posted workers

2.1 Please provide details on the current legislative framework for posted workers in your country:

a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;

Ireland never transposed the 1996 Directive with a specific piece of legislation. Instead, a section (section 20) was inserted into the Protection of Employees (Part-Time Work Act) 2001. Details of section 20 of the Protection of Employees (Part-time Work) Act 2001 can be found on the Irish Statute Book website (www.irishstatutebook.ie).

b) A brief account of any amendments or integrations introduced after the initial adoption;

None.

c) A description of the current legal framework regarding posted workers, especially:

- as regards the way employment conditions are enforced, as required by art. 3.1. of the Directive (see the briefing note for the text of the article):

i. by law, regulation or administrative provision, and/or

In Ireland, employment conditions for posted workers are primarily enforced by law.

As noted above, the Directive was not implemented in Ireland by specific transposing legislation, but by inserting section 20 of the Protection of Employees (Part-Time Work) Act 2001, which provides that all Irish employment protection legislation applies to workers posted to work in Ireland, in exactly the same way as it applies to domestic workers covered by the legislation. In other words, domestic, migrant and posted workers enjoy equal rights under the National Minimum Wage Act, 2000, Unfair Dismissals Act 1977, the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997, to name but four.

Section 20 of the 2001 Protection of Employees (Part-Time Work) Act states:

‘20. (1) In this section, the ''Directive'' means Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services; (2) For the avoidance of doubt, every enactment referred to in subsection; (3) that confers rights or entitlements on an employee applies and shall be deemed always to have applied to:

(a) a posted worker (within the meaning of the Directive), and

(b) a person, irrespective of his or her nationality or place of residence, who -

(i) has entered into a contract of employment that provides for his or her being employed in the State,

(ii) works in the State under a contract of employment, or

(iii) where the employment has ceased, entered into a contract of employment referred to in subparagraph (i) or worked in the State under a contract of employment, in the same manner, and subject to the like exceptions not inconsistent with this subsection, as it applies and applied to any other type of employee.

(3) The enactment mentioned in subsection (2) is one the principal functions under which are vested (disregarding functions vested in the Labour Court, the Employment Appeals Tribunal or any other person who is not a Minister of the Government or a Minister of State) in-

(a) the Minister or a Minister of State at the Department of Enterprise, Trade and Employment, or

(b) the Minister for Justice, Equality and Law Reform or a Minister of State at the Department of Justice, Equality and Law Reform.’

Some of the most pertinent generally applicable laws protecting posted workers are as follows:

  • the Organisation of Working Time Act 1997, which lays down rights for employees with regard to the maximum average length of the working week (48 hours, including overtime), minimum rest periods, and minimum holiday entitlements (20 days);
  • the National Minimum Wage Act 2000, (IE0107170F) under which all workers in Ireland, including posted workers from overseas are entitled to a national minimum wage, which is currently set at EUR 8.65 per hour. Aside from the national minimum wage, low-paying industries such as agriculture, hairdressing, hotel/catering and retail are regulated by Joint Labour Committee s (JLCs) (see also below), which set minimum rates of pay in their sectors. At present, there are 17 JLCs covering approximately 8% of the labour force;
  • a number of statutory employment equality provisions, many of which are contained in the Employment Equality Act 1998 (IE9909144F). The Act prohibits discrimination on the grounds of gender, marital status, age, race, disability, family status, sexual orientation, religion and membership of the travelling community.

Posted workers in Ireland are also subject to various regulations relating to work permits and intra-company transfer permits, as follows:

Nationals from the European Economic Area (EEA) and Switzerland do not need permission to work in Ireland. Nationals of Bulgaria and Romania may need permits to work in Ireland. Nationals from countries other than EEA countries and Switzerland generally require permission to work in Ireland. The type of permission required varies according to the type of work involved. There are two main types of permit - Green Card permits and work permits. There are also special arrangements for the intra-company transfer of staff.

Green Card permits are granted to people whose skills are highly in demand in Ireland. The Green Card permit replaces the working visa and work authorisation schemes, which have been discontinued.

Work permits are issued for occupations with an annual salary of €30,000 or more that are not eligible for Green Card permits. Work permits are considered for a very limited number of occupations with salaries below €30,000. A labour market needs test is required for all work permit applications. The test requires that the vacancy has been advertised with the FÁS (state training agency) employment network and in local and national newspapers for three days. This is to ensure that an EEA or Swiss national, in the first instance, or a Bulgarian or Romanian national, in the second instance, cannot be found to fill the vacancy. The Green Card permit does not require a labour market needs test. Although the work permit is issued to the employee, either the employer or the employee can apply for the work permit.

The intra-company transfer permit scheme is designed to allow the transfer of senior management, key personnel or trainees who are foreign nationals from an overseas branch of a multinational corporation to its Irish branch. The employees must have a minimum annual salary of €40,000 and must have been working for at least 12 months with the overseas company. Holders of intra-company transfer permits cannot work for other employers.

Permits are granted for up to 24 months and can be renewed for a further three years up to a maximum stay of five years in total.

ii. by collective agreements or arbitration awards which have been declared universally applicable;

Posted workers in Ireland’s construction industry are covered by the multi-employer industry-level Registered Employment Agreement (REA) - ie a collective agreement registered with the Labour Court- applying to construction workers. In 1999, approximately 55,000 unionised construction workers (out of a total workforce of 136,000) were party to the REA, which was signed by the Construction Industry Committee (CIC) of trade unions and the Construction Industry Federation (CIF). Furthermore, those workers in the sector who are not union members, and so not formally part of the REA, are still affected by it, as Irish industrial relations law provides that when an agreement is registered with the Labour Court it can then establish terms and conditions that are applicable to all employers and workers in the industry, and not just the parties to the agreement.

In total, there are 67 Registered Employment Agreements on the Register maintained by the Labour Court. The construction REA is the largest.

- whether the law requires the application to posted workers of:

i. the whole system of labour law or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

As noted above, in theory, a worker posted to Ireland has the protection of all Irish employment legislation in the same way as other employees in Ireland.

ii. the whole content of collective agreements or arbitration awards which have been declared universally applicable or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

See Registered Employment Agreement (REA) for construction industry above. It is applicable to all employees in the construction industry

Although there are 67 REA’s in Ireland, the majority only affect individual companies, rather than being universally applicable across a sector.

- when the employment conditions are set by collective agreements or arbitration awards, please specify which is the legal instrument which make them universally applicable:

i. according to the law. Please specify the law reference number and year and whether it includes certain requirements for universal application. In this latter case, please specify such requirements.

Registered Employment Agreements (REAs): Under the Industrial Relations Acts, 1946 to 2004, employers and workers in any sector or enterprise can negotiate Employment Agreements setting out minimum rates of pay and conditions of employment and can than have that agreement registered with the Labour Court. When registered with the Court, these agreements are legally enforceable in respect of every worker of the class, type or group to which it is expressed to apply and to his or her employer, even if such worker or employer is not a party to the agreement. A Registered Employment Agreement may provide for future variation of any of its provisions; an application to vary the provisions of such an agreement must be made to the Court, which will consider the application and, if satisfied, approve it.

See the following Labour Court hyperlink for all 67 REA’s in Ireland: http://www.labourcourt.ie/labour/labour.nsf/LookupPageLink/HomeRatesOfPay

In addition, Joint Labour Committees (JLCs) are established by means of a statutory order made by the Labour Court. They are independent bodies which determine minimum rates of pay and conditions of employment for workers in their respective sectors. The pay and conditions agreed by the JLCs are given the force of law in Employment Regulation Orders made by the Labour Court on foot of proposals made to the Court by the JLCs. Currently, there are 17 JLCs in existence.

ii. according to a ministerial decree. Please specify which minister or political authority can issue the decree and whether certain requirements are needed. In this latter case, please specify such requirements.

iii. according to rules on mandatory representation which make collective agreements (in practice) universally applicable.

- when the employment conditions are set by collective agreements, please specify which collective agreements are relevant:

i. intersectoral or sectoral. Please provide examples.

Sector. See construction industry REA above. Other sectoral REAs include the printing REA and electrical contracting industry REA.

In addition, minimum rates of pay, and other conditions of work, for workers in certain sectors, including posted workers, are determined by Joint Labour Committees (JLCs). Each JLC is composed of representatives of workers and employers in the sector concerned.

ii. national or territorial. Please provide examples.

d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.

No

e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.

Yes. See construction REA above. At present, the construction REA sets the following statutory minimum pay rates: €18.60 for construction craftsmen, and €14.88-€18.04 for construction operatives.

2.2 Monitoring of implementation of regulation

a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;

No

b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.

Not specifically. However, information relating to employment law is available on the website of the Department of Enterprise, Trade and Employment and the National Employment Rights Authority (NERA).

c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.

Again, not specifically in relation to posted workers. However, Ireland has significantly increased the number of labour inspectors, who are responsible for policing and enforcing compliance with employment rights – the labour inspectors have paid particular attention to companies employing large numbers of migrant workers.

2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:

a) the current rules for the posting of temporary agency workers in your country, especially whether the law requires the application to temporary agency workers of:

i) the whole legislation on temporary agency work or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

In theory, temporary agency workers posted to Ireland from overseas are covered by the same legislation as agency workers living in Ireland on a more permanent basis. However, unions have been concerned at what they see as growing exploitation of overseas agency workers posted to Ireland. As a result, unions demanded stronger legal protections for temporary agency workers. In the next few years, new legislation on temporary agency workers will be introduced – regulating the activities of employment agencies, and providing equal treatment rights for agency workers in compliance with the new EU Directive.

The Government is committed to introducing a new Employment Agencies Regulation Bill, which will regulate the activities of employment agencies. The legislation will replace the existing Employment Agencies Act 1971. The new law will implement a ‘Monitoring and Advisory Committee’ overseeing and regulating the operation of employment agencies. The social partners and the National Recruitment Federation (which represents many agencies) will be involved with this Monitoring Committee. Further, a new statutory code of practice will govern standards of behaviour expected of agencies. As a statutory code, overseas employment agencies will also be subject to compliance with its terms. Granting of licenses to agencies will be conditional on compliance with the statutory code.

The Employment Agencies Regulations will:

  • require an employment agency to hold a licence and make it an offence to use an unlicensed agency in Ireland;
  • provide that the terms of Registered Employment Agreements (REA’s), Employment Regulation Orders (EROs), and statutory terms, apply to agency workers and posted workers in the relevant employments;
  • provide clarity as necessary in relation to who is the employer of agency and posted workers for the purposes of Employment Rights Legislation; and
  • for the purposes of enforcement, seek to require the maximum presence in Ireland of such agencies for the purpose of record keeping on pay and other employment related matters to facilitate compliance and enforcement, to the extent consistent with the EU Treaties.

The statutory code of practice will cover standards of behaviour for employment agencies, including:

  • recruitment and placement practices;
  • restrictions on the handling of personal information;
  • advertising practices – including a prohibition on trawling for CVs;
  • clarity in relation to travel expenses;
  • verification of qualifications;
  • provision of information in the language of the job applicant;
  • provision of information together with terms and conditions in a single document;
  • prohibition on the reimbursement of the employer fee by the jobseeker.

In addition, the Irish Government will have to introduce specific legislation to transpose the EU Directive on equal treatment rights in relation to pay and terms and conditions of employment for agency workers.

Prior to the legal developments cited above, aside from the outdated 1971 Employment Agencies Act, TAW was covered only by general labour law regulating Irish workers as a generality. However, the enactment of new Employment Agencies Regulation law, and any legal measures on equal treatment, will usher in legislation specifically relating to TAW.

ii) the types and requirements for temporary agency work established by national legislation (compared to those envisaged by the legislation of the country of origin). For example, can temporary agency workers be posted under contractual arrangements – such as indefinite duration staff leasing - which would not be available for national temporary work agencies?

b) the current rules for employment conditions in public procurement, notably whether the law:

There are no specific laws relating to employment conditions of posted workers in cases of public procurement. However, posted workers may fall under collective agreements relating to public procurement (for instance, see Dublin City Council contractor’s agreement below).

i) requires explicitly the application of specific terms and conditions of employment to be awarded public procurement contracts. If yes, please specify what kind of terms and conditions of employment must be applied (comprehensive terms or only minimum levels?).

No

ii) requires explicitly the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify what kind of agreements must be applied (national, sectoral, territorial) and to what extent (the whole agreement or only certain and minimum provisions?).

No

iii) allows awarding authorities to require the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify to what extent this possibility is used (almost always, often, rarely, almost never) and what kind of agreements are more often considered for such clauses (national, sectoral, territorial).

Under a 2005 Dublin City Council collective agreement with its trade unions, all employees working for the Council’s contractors are expected to enjoy the same access to the state resolution agencies and machinery as is available to directly employed Council staff. The DCC agreement does not imply full trade union recognition, as no company can be forced down that route. But it suggests where union recognition is in place, securing a contract may be easier.

More generally, Ireland’s national agreement, Towards 2016, sets down sectoral collective bargaining rules regulating the use of TAW/outsourcing in the public sector. Within limits, a clause in Towards 2016 – ‘service delivery options’ – affords the Government and public service employers greater scope than hitherto to contract out public sector work to private sector companies and employment agencies, as follows:‘It is accepted that there can be situations where, without affecting the essential ethos of the public service, work can be carried out or services delivered more effectively or efficiently, or both, by the employment of temporary staff, contracting out of work to the private sector or outsourcing it to other public service bodies or a combination thereof. There is a variety of instances where it is recognised and accepted that this is already the case and these will continue. In exceptional situations involving temporary pressures or peaks, or in order to avoid excessive delays in the delivery of services, management may, at its discretion, have the work undertaken on this basis’.The public service clause emphasizes that collective agreement must be reached with public service unions through normal industrial relations mechanisms – i.e. collective bargaining. Where collective agreement cannot be reached, disputes can be referred to the various state dispute resolution institutions.

iv) envisages specific clauses in the case of posted workers. If yes, please briefly illustrate the contents of such rules.

No

3. Positions and actions of the social partners and government on posted workers

3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:

a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.

There has been quite significant debate in Ireland relating to the possible implications of the EU Services Directive and the European Court of Justice judgments in the cases of Laval and Ruffert. See b) below.

b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).

Unions in Ireland have expressed fears that the judgment by the European Court of Justice in the Laval case, relating to freedom to provide services, could open the door to ‘wage dumping’ and a downgrading of employment conditions. But one barrister and employment law expert believes that the case is ‘a non-issue’ in Ireland, because the Employment Equality Acts prohibit discrimination on grounds of nationality and race. Unions would take issue with this, and one senior trade unionist believes that Employment Equality legislation can be circumvented by employment agencies and, also, where a foreign company provides a service in Ireland where there is no Irish comparator in relation to pay and terms and conditions. The union view is that comparator provisions in Irish Employment Equality law are not sufficiently strong enough to give Latvian workers, for instance, protection beyond the national minimum wage. The view from a union standpoint is that the ECJ is pushing for more legalized industrial relations/collective bargaining systems with greater legal certainty on pay and other matters, which has implications for the erosion of voluntarist IR traditions in countries such as Ireland.

From an employer perspective, an Irish Business and Employer Confederation (IBEC) spokesperson believes that decisions such as the ECJ Laval judgment have to be seen in the context of the particular domestic arrangements that apply, with Ireland having a different industrial relations system to Scandinavian countries. He suggested that ‘we have to preserve the situation where an employer can put in place terms and conditions of employment to suit particular business circumstances, while being compliant with statutory provisions’.

Some commentators have suggested that Ireland’s posted worker regulations may be in breach of the EU Directive. Following the ECJ Ruffert ruling, Ireland, along with the United Kingdom, Italy and Belgium, is at risk of European Commission infringement proceedings in relation to the implementation of the Posted Workers Directive (PWD), according to Professor Catherine Barnard of the University of Cambridge. Speaking at the recent annual conference of the European Labour Law Network, Professor Catherine Barnard pointed out that the current approaches taken by Ireland and some other European countries to the implementation of the Posted Workers Directive is not permitted. As noted above, the Directive was not implemented in Ireland by specific legislation, but by section 20 of the Protection of Employees (Part-Time Work) Act 2001, which provides that all Irish employment protection legislation applies to workers posted to work in Ireland, in exactly the same way as it applies to domestic workers covered by the legislation. Professor Barnard asserted that this approach to implementation of the Directive may not now be appropriate. She referred to the decision of the Court of Justice in Case C-319/06, Commission v Luxembourg. The European Commission had contended that a member state was not free to impose unilaterally all the mandatory provisions of its employment law on suppliers of services established in other member states. The Court of Justice agreed and ruled in favour of the Commission, which accused Luxembourg of transposing the 1996 PWD too restrictively into Luxembourg law. It could well be that section 20 of the Protection of Employees (Part-Time Work) Act 2001, which covers the Posted Workers Directive in Ireland, requires undertakings in another Member State, which posts workers to Ireland, to comply with many statutory terms and conditions that go beyond the requirements of Article 3 of the Directive.

Back in July 2003, the European Commission issued a report on the implementation of the 1996 PWD Directive. This report said that the method used by the two countries which did not use a specific transposal instrument (Ireland and the UK), needed to be ‘assessed’ in the light of European Court of Justice cases. For its part, the Irish Government is of the view that existing arrangements are in compliance with the Directive. According to official sources in Dublin, while the matter was raised by the Commission at one point, it was never pursued. It is understood that when inserting the relevant section (Section 20) into the 2001 Act, the Government at the time was acting on legal advice that this approach would be sufficient to transpose the directive.

More recently, in April 2008, an opposition politician asked the Minister for Enterprise, Trade and Employment his views on whether the EU PWDs, as referenced in the Ruffert European Court of Justice ruling, could have a negative impact on the protection of the minimum wage in Ireland. The Minister responded at the time that the Ruffert judgment is currently being considered by Member States. He said ‘it appears that the judgement is quite case-specific and hinged on the failure of the German authorities to give universal application status to the collective agreement, even though procedures for doing so existed. I am satisfied that the transposition of the Posted Workers Directive in Ireland — through the Protection of Employees (Part-time Work) Act 2001 — is robust in its protection of the employment rights, including minimum wage requirements, of posted workers in Ireland’.

3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors. Please cover, in particular:

a) Trade union initiatives with regard to:

There have been no union campaigns specifically relating to posted workers per se. Rather, union campaigns have been more generally related to pushing for stronger rights for migrant workers and to organize and recruit migrant workers. Irish unions have expressed concern that the growth of migrant workers and agency workers, especially since EU enlargement in 2004, has generated downward pressures on unionised rates of pay and terms and conditions of employment. In relation to this, there has been extensive debate in Ireland as to whether the influx of migrant workers is displacing indigenous (unionised) Irish jobs. To circumvent possible tensions emerging between indigenous workers and migrant workers, unions have strove to place the focus on strengthening employment rights and standards for vulnerable workers whatever their nationality. By raising the floor on employment standards for vulnerable workers, unions are striving to close off loopholes that certain employers might use to downgrade the pay and conditions of unionised workers generally.

In this context, Ireland’s largest union, the Services Industrial Professional and Technical Union (SIPTU) launched a national campaign to improve agency worker rights in late 2007. The aim of the SIPTU campaign is to boost awareness of what the union views as the growing exploitation of agency workers, both among union members, good employers, politicians and wider civil society. SIPTU is also concerned with organizing and recruiting agency workers. Generally speaking, union leaders in Ireland are concerned that the spread of employment agencies has the potential to circumvent every piece of employment protection legislation. Unions fear that use of employment agencies and agency workers provides employers with a loophole to circumvent employment law; which is why they are so active in lobbing the Government for equal treatment rights for agency workers. It is too early to assess the impact of SIPTU’s agency worker campaign.

b) Employers initiatives with regard to:

As far as the Irish national centre are aware, there have been no employer activities of this nature.

c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers

No.

4. Collective disputes and case law on posted workers

4.1 Please indicate whether collective disputes involving posted workers are frequent or increasing in recent times.

Collective disputes in Ireland have mainly related to use of agency workers, rather than posted workers specifically. Collective disputes involving agency work have increased in Ireland in recent times.

4.2. Please provide information on any major collective disputes which concerned the utilisation of posted workers in your country. Please include for each case:

The most high profile collective dispute relating to workers posted to Ireland occurred in Turkish firm GAMA construction in 2005. The dispute was eventually settled by the Labour Court in May 2005. By way of background to the dispute, the Gama Group was founded in 1959 and GAMA Endustri was established in 1970. GAMA Endustri only activity in Ireland is the secondment of employees mainly Turkish Nationals to GAMA Construction Ireland Limited. (‘GAMA Ireland’) a company incorporated in and having its only place of business in Ireland. The GAMA dispute centred on claims by unions that its members employed by the company were required to work a significant number of hours in excess of the statutory maximum of 48, for periods ranging from a number of months to three years, for which they were not paid overtime. It was also claimed that certain categories of employees not covered by the Registered Employment Agreement for the Construction Industry were paid unacceptably low rates during the currency of their employment. The company denied these allegations. Approximately 80 workers were associated with the claims, all of whom were Turkish Nationals. A strike in furtherance of the dispute had been in progress for seven weeks prior to the Labour Court hearing. At the request of the Court picketing was discontinued for the duration of its investigation.

The Court recommended as follows:

Pay: The Court recommended that the 80 workers associated with the claim should be paid a lump sum of €8,000 in respect of each completed year of service with the company and pro-rata in respect of part years. A minimum payment of €2,000 should apply. This amount should be paid by the company without admission of liability and should be accepted by unions in full and final discharge of all claims in respect of alleged unpaid overtime. In addition, on the termination of their assignment in Ireland each worker should receive an ex-gratia severance payment equal to one month’s salary.

REA: The Court said the workers concerned should be paid not less than the minimum REA General Operative rate for the industry. The Court recommended that workers whose rate of pay was less than that amount should be brought up to that rate back-dated to their commencement date subject to a maximum of 12 months retrospection. This should be without prejudice to any claim which any worker may have had under the National Minimum Wage Act, 2000 in respect of a earlier period.

Also, all workers employed by the company, regardless of their nationality should clock in and out of work and be issued with pay slips each week which comply with the requirements of the Payment of Wages Act, 1991. There should be no distinction in these matters between workers of Irish or Turkish nationality.

On acceptance of these proposals, the Court said all industrial action should cease and there should be a full resumption of normal working. Where workers wish to terminate their assignment in Ireland this should be accommodated by the company and any outstanding amounts due to them, arising from this recommendation or otherwise, should be paid immediately (LCR18214). (www.labourcourt.ie) The Court proposals were accepted by both sides, and the seven-week long strike was suspended.

4.3 Please provide information of existing case law in your country involving posted workers. Please include:

Aside from Labour Court recommendations, such as GAMA above, as far as the national centre is aware, there is no information on higher case law in Ireland specifically involving posted workers. As noted, Ireland does not have specific legislation relating to posted workers.

Commentary

The main issue relating to the PWD in Ireland is that some commentators in Ireland and elsewhere have expressed doubts over the status of the current Irish legal provisions relating to the transposition of the PWD; particularly following recent European Court of Justice decisions. In a nutshell, the Directive was not implemented in Ireland by specific legislation, but by section 20 of the Protection of Employees (Part-Time Work) Act 2001, which provides that all Irish employment protection legislation applies to workers posted to work in Ireland, in exactly the same way as it applies to domestic workers covered by the legislation. There is a perception in some quarters that this might be an infringement of the Directive – in the sense that section 20 of the PTW Act 2001 requires undertakings in another Member State, which posts workers to Ireland, to comply with many statutory terms and conditions that go beyond the requirements of Article 3 of the Directive. In relation to this, there is a view that the Irish transposing legislation could be more specific and clear-cut. However, the Government believes that the Irish provisions comply with the Directive.

References:

McPherson A. and Roche W., 1996, Peripheral location equals localised labour?: Multinationals and the internationalisation of training and development in Ireland, CEROP Working Paper, No. 20

Tony Dobbins, NUI Galway

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