Thematic feature - posted workers

This article examines the Irish situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.

EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.

The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:

• maximum work periods and minimum rest periods;

• minimum paid annual holidays;

• minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);

• the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;

• health, safety and hygiene at work;

• 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; and

• equality of treatment between men and women and other provisions on non-discrimination.

As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').

The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.

In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Irish responses are set out below (along with the questions asked).

Regulatory framework

What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?

Posted workers are not covered by specific measures directly aimed at them, but are protected by employment rights which apply more generally. In theory, all employment rights apply equally to all employees in Ireland, irrespective of nationality, who are covered by a valid work permit and a contract of employment (though in practice, instances of exploitation have occurred). Therefore no specific new legislation implementing the Directive was regarded as necessary.

Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?

Workers posted to Ireland are protected by a minimum floor of employment rights, which has gradually increased since the Directive was transposed - mainly as a result of the implementation of various EU Directives. These generally applicable employment rights include:

• 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 6.35 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), which set minimum rates of pay in their sectors. At present, there are 16 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](http://www.odei.ie/EmploymentEquality/Employment Equality Act, 1998.htm) (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; and

• the Protection of Employees (Part-Time Work) Act 2001 (IE0202202F).

Under the terms of the Directive, posted workers in the 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 (TN0212102S).

In relation to temporary agency workers, the Employment Agency Act 1971, regulates the operation of temporary work agencies in Ireland, but does not regulate the actual employment conditions of agency workers (TN9901201S). The Unfair Dismissals (Amendment) Act 1993 provides some protection for temporary workers. Apart from this, the regulation of temporary agency working in Ireland is relatively light compared with many other EU countries.

In recent months, the independent weekly industrial relations publication, Industrial Relations News, has documented a number of specific measures been taken in Ireland aimed at preventing abuses arising from the posting of temporary agency workers and the exploitation of the work permit system for workers from outside the European Economic Area (EEA). Indeed, there has been a great deal of controversy in this regard. In October 2002, the Irish government temporarily suspended the Intra-Company Transfer Scheme, following growing evidence that a minority of employers were abusing the scheme. The Intra-Company Transfer Scheme was introduced in 1999 as a facility whereby companies with a bona fide presence in Ireland and at least one other non-EEA country could transfer staff to Ireland for up to four years without a work permit being necessary. Those being transferred must present an appropriate letter from the headquarters of the company to immigration officers upon arrival in Ireland. This concession was intended primarily to help multinational companies which needed to relocate key personnel to Ireland for a limited period of time.

Following suspension of the scheme, the Department of Enterprise, Trade and Employment stated that there was now 'growing evidence of misuse of these schemes, whereby contrived arrangements are being put in place to exploit these facilities as a means of bypassing the work permit system and the domestic labour market. There is increasing concern about the role of some recruitment agencies in such schemes, as well as the fact that many of the staff currently being transferred are low-skilled or unskilled, whereas the scheme was intended for very limited numbers of highly skilled or key personnel only.'

In a further development, the Department of Enterprise, Trade and Employment now plans publicly display to details on its website about employers which employ foreign workers on work permits, as part of what it describes as an attempt to clamp down on abuse of the work permit system, in relation to the recruitment of workers from outside the EEA. The Department also believes that the plan will promote transparency and contribute to freedom of information. This initiative, together with the suspension of the Intra-Company Transfer Scheme, forms part of a proposed tougher regime pertaining to work permits.

Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?

No collective agreements or initiatives by the social partners specifically concerning posted workers have been reported in Ireland. The Irish social partners were consulted by the government when the Directive was transposed into law.

The workers affected

Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.

There is no recent data on the number of workers posted from Ireland to other countries. However, 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 for Irish employees of multinationals based elsewhere. A 1996 survey of 140 high-technology foreign-owned multinational company establishments in Ireland (Peripheral location equals localised labour?: Multinationals and the internationalisation of training and development in Ireland, A McPherson and W Roche, CEROP Working Paper, No. 20, October 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.

Please provide similar figures, if available, for employees posted to your country from other EU Member States.

There are no accurate figures available for the number of employees posted to Ireland from other EU Member States.

Workers in the construction industry

The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?

There have so far been no measures introduced by the government or the social partners aimed specifically at posted workers in the construction industry (though see above for information on the Registered Employment Agreement for the sector).

Concerns about labour shortages prompted the Construction Industry Federation (CIF), the organisation representing employers in the Irish construction industry, and the state Training and Employment Authority (Foras Áiseanna Saothair, FÁS) to cooperate on a recruitment campaign in 1997. This resulted in 5,000 migrant construction workers coming to Ireland to work. It is not clear exactly how many of these workers were posted by their home country employers, how long they stayed, or how many more workers have followed them. Furthermore, in recent years, the government has had to extend the tendering of construction work to conform with EU requirements. Irish construction projects used to be open only to Irish contractors, but now such work has to be advertised across the EU. This has undoubtedly led to an increase in construction workers posted by overseas employers and/or temporary work agencies to Ireland.

A major challenge that has faced the construction industry in recent years is the issue of subcontracting and the underground economy. Over the last 20 years or so, the employment structure of the industry has changed fundamentally, with many contractors changing from employing high numbers of direct employees (many of them unionised), to hiring self-employed subcontracted workers in a contract management role, at least to some degree. Subcontracted workers from Ireland and overseas are not covered by the REA for the industry and their terms and conditions of employment tend to be quite poor.

The positions of the social partners and government

Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.

The perception of the Irish Business and Employers Confederation (IBEC) is that the posted workers Directive has not really made much difference in the Irish context because there are not that many rigid, legally binding provisions regulating the Irish labour market. This is because the Irish industrial relations system is still largely voluntarist. The Construction Industry Federation (CIF) welcomes the Directive because it helps to facilitate a 'level playing field' in construction, reinforcing the universal applicability of the Registered Employment Agreement (REA) for the industry.

The Building and Allied Trades Union (BATU), the main construction union in Ireland, suggests that relatively few construction workers are posted to Ireland directly by overseas employers. One of the problems it believes exists at the moment is that the role of temporary work agencies in the posting of workers is rather ambiguous. (Tony Dobbins, IRN)