A very important aspect for foreign businesses is the ability to use employees of the mother company. It is important to maintain the optimum way of posting elsewhere – for example to a company established in Poland.
A worker is „a posted worker” when he/she is employed in one EU Member State but sent by his employer on a temporary basis to carry out his work in another Member State. Trans-national provision of services, where employees are sent to work in a Member State other than the one they usually work in, gives rise to a distinctive category, namely that of “posted workers”.
To guarantee that the rights and working conditions of a posted worker are protected throughout the EU, and to avoid „social dumping” where foreign service providers can undercut local service providers because their labour standards are lower, the European Community law has established a core of mandatory rules regarding the terms and conditions of employment to be applied to an employee posted to work in another Member State. These rules will reflect the standards of local workers in the host Member State (that is, where the employee is sent to work).
The idea is that where a Member State has certain minimum terms and conditions of employment, these must also apply to workers posted to that State. However, there is nothing to stop the employer applying working conditions which are more favourable to workers such as, for instance, those of the sending member State (that is, where the employee usually works).
The Posting of Workers Directive covers employees being sent to another Member State in three situations: (a) when an employer posts a worker to another Member States on his own account and under his direction, under a contract which the employer has concluded with the party in the State for whom the services are intended; (b) when an employer posts a worker to an establishment or to an undertaking owned by the group in the territory of a Member State; (c) when the employer, being a temporary employment undertaking or placement agency, hires out a worker to a user undertaking established or operating in another Member States.
The employment relationship between the employer and the posted worker must be maintained during the period of posting.
The core of mandatory rules on posting covers a wide range of issues such as maximum work periods and minimum rest periods, minimum paid annual leave, minimum rates of pay, equal treatment between men and women and the conditions of hiring out workers, in particular the supply of workers by temporary employment undertakings. The legislation also tackles issues such as health and safety at work and includes protective measures in the terms and conditions of employment of pregnant women, of children and of young people.
Thus, the length of leave, minimum wage and overtime pay, working time, rest period will always apply the law in force in the country to which the worker is posted – in this case Ireland. The employer has no obligation to pay the cost while travel to another country, provide accommodation and meals or in lieu of payment of allowances. Such provisions may be contained in the agreement, but it should be noted that any law regulation shall not require to include that kind of statements, thus it remains within limits of contractual freedom of the parties.
