Secondment & Posting
Secondment
Secondment is a process by which a person is assigned from one employer to another while retaining the right to return to the first employer. The employee may or may not leave employment with the original employer, depending on the terms of the agreement. He may be placed with the host while still working with the original employer. Alternatively, the actual employment itself may be transferred.
In the case of secondment outside the State for more than a month, the employer must give details to the employee of
- the period outside the State;
- benefits;
- currency of payment;
- terms and conditions of employment;
- provisions regarding repatriation.
Special legislation protects posted workers. See the section on the Posted Workers Directive.
Effect on Employment
Termination of employment during secondment may constitute a dismissal protected by unfair dismissal legislation. The denial of a return to employment with the original employer or the failure to provide suitable alternative employment may constitute unfair dismissal. Breach of a secondment agreement may constitute an ordinary breach of contract and/or an unfair dismissal.
In some cases of secondment, the person may be in the actual employment of the apparent host employer. This may arise when a placement takes place to an outside business or firm which pays the employee’s salary at all material times. The circumstances may be such that the ostensible employer is an agent of the true employer.
Employers may give guarantees to employees who are seconded. It may be negotiated that the employees retain their original terms and conditions. These guarantees may be enforceable even over a prolonged period of time, and irrespective of changed commercial circumstances, which make them difficult to fulfil.
Employer Mutual Agreements
There will commonly be an agreement between the original employer and the second employee. It may provide for the terms of return to the original employer. This may be in the same or in an equivalent position. There may be provision for the continuation of pension contributions and other benefits during secondment. There may be provisions for relocation, expenses and other necessary costs which arise in the secondment. There may be provision for annual leave in the case of secondment abroad, including payment of the cost of traveling back to the State.
Where the employee continues to be employed by his original employer, an agreement between the first and second employer may provide for the responsibilities of the first employer to procure the employee’s performance of functions. It may define their duties and responsibilities to each other. It may provide for reporting, directions and control, and other practical rights and obligations. There may be provision for a replacement secondee.
Posted Workers Directive
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 Posted Workers Directive provides for the application of domestic employment law to workers who are posted abroad.
The Posted Workers Directive is implemented in Ireland under the Protection of Employees (Part-Time Work) Act, 2001. Most employment protection legislation is deemed to apply to posted workers and persons who,
- irrespective of their nationality or place of residence, have entered into contract employments which provides for employment in the State; and
- who work in the State under a contract of employment or
- where the employment has ceased, entered into a contract of employment or worked in the State under a contract of employment.
Employment protection legislation applies in the same manner and subject to the same exceptions as apply to other employees.
The legislation covered includes almost all employment protection legislation, including unfair dismissal, redundancy, minimum notice, employer’s insolvency, payment of wages, maternity protection, terms of employment, adoptive leave, protection of young persons, organisation of working time, parental leave, employment equality, carers leave and the national minimum wage. It appears that they are also covered by registered employment agreements and employment regulation orders.
Scope of Directive
A posted worker is defined as a worker, who for a limited period, carries out work in the territory of a state other than the state in which he normally works. A worker is as defined by the law of the state to which he is posted.
The Directive is applicable where a business does any of the following:
- a temporary employment undertaking or placement agency, which hires out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting.
- posts workers to the territory of another state where there is an employment relationship between the business, which makes the posting and the employee during the period of posting; they may do so on their account, under their direction or under the terms of a contract concluded between the posting business and the parties for whom the services are intended operating in the state;
- posts workers to an establishment or business owned by the group in the territory of a state provided there is an employment relationship between the business making the posting and the worker during the posting;
Incoming Postings
A service provider established in another EU Member State who temporarily posts workers in the State shall make a declaration and furnish it to the WRC (competent) authority no later than the date on which it commences providing the service, containing—
- the identity of the service provider,
- the anticipated number of clearly identifiable posted workers,
- the anticipated duration and envisaged beginning and end dates of the posting of each worker,
- the address of the workplace to which each worker is to be posted, and
- the nature of the services justifying the posting,
It must 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—
- 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,
- his or her payslips or equivalent documents,
- where relevant, time sheets, or equivalent documents, indicating the beginning, end and duration of his or her daily working time, and
- proof of payment of wages,
It must 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 inand, where necessary, a translation of those documents into the English language. It mist designate a person to liaise with the competent authority and to send out and receive documents and notices as necessary be.
Construction Sector
Where a posted worker in the construction sector is not paid the applicable statutory rates of pay by their direct employer (the subcontractor) the contractor, one up the supply chain, can be held liable either in addition to or in place of the employer.Where the employer of a posted worker is a direct subcontractor of a contractor and the posted worker has not received net remuneration due to him or her for work under the contractual relationship between the contractor and the posted worker’s employer, the posted worker’s employer and that contractor are jointly and severally liable for the amount of net remuneration outstanding.
A contractor shall not be liable for any outstanding net remuneration due to a worker b where the contractor shows that he or she has taken all reasonable steps to obtain from the employer of the relevant posted worker—
- a copy of the acknowledgement of the employer’s declaration to the competent authority issued under Regulation 6,
- a list of all persons employed by him or her to carry out work under the contractual relationship between the contractor and the employer, and in respect of each person, his or her personal public service number (PPSN), date of birth, job description, nationality, start date and end date of posting, gross weekly wage and normal number of hours to be worked per week,
- a written assurance that he or she will pay the worker’s net remuneration, and
- once per month during the period of the contract, wage records, time sheets and proof of payment (EFT details) in respect of the worker for each pay period.
The activities m covered include all building work relating to the construction, repair, upkeep, alteration or demolition of buildings, and in particular the following work:
- excavation
- earthmoving
- actual building work
- assembly and dismantling of prefabricated elements
- fitting out or installation
- alterations
- renovation
- repairs
- dismantling
- demolition
- maintenance
- upkeep, painting and cleaning work
- improvements
Enforcement
There is an EU Directive 2014/67/EU (“the Directive”) on the enforcement of Directive 96/71/EC (“the Framework Directive”) concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System.
The Directive contains a number of measures aimed at improving co-operation between Members States and their competent authorities to ensure the effectiveness of the protections provided for in the Framework Directive. Both Directives put in place a framework for the provision of services by posting workers, and create the conditions to enable those posted workers to enforce their rights.
WRC Inspectors may exercise their ordinary powers in relation to
- Maximum work periods and minimum rest periods
- Minimum paid annual holidays
- The minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes
- The conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings
- 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
- Equality of treatment between men and women and other provisions on non-discrimination