The Posted Workers (Enforcement of Employment Rights) Regulations (Northern Ireland) 2016

Made: 10th June 2016

Coming into operation: 18th June 2016

The Department for the Economy is a Department designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to employment rights and duties and services in the internal market.

The Department, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972, makes the following Regulations.

PART 1 — General

Citation and commencement

1

These Regulations may be cited as the Posted Workers (Enforcement of Employment Rights) Regulations (Northern Ireland) 2016 and come into operation on 18th June 2016.

Interpretation

2

• (1) In these Regulations—

• “Directive 96/71/EC” means Council Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services ;

• “Directive 2014/67/EU” means Council Directive 2014/67/EU of the European Parliament and the Council on the enforcement of Directive 96/71/EC 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 IMI Regulation’) .

• “the Department” means the Department for the Economy.

• (2) The Interpretation Act (Northern Ireland) 1954 shall apply to these Regulations as it applies to an Act of the Assembly.

PART 2 — Posted Workers in the Construction Sector

Scope of application of this Part

3

• (1) This regulation and regulations 4 to 7 apply to a posted worker in the construction sector who—

• (a) is working or has worked in Northern Ireland; and

• (b) is working or has worked for the employer to perform services that relate to the employer's contractual obligations to the contractor.

• (2) For the purposes of this regulation and regulations 4 to 7—

• “contractor” means a person with whom the employer has contracted to provide services;

• “employer” means a service provider established in the United Kingdom or a Member State which posts or hires out workers in a manner described by paragraph 3 of Article 1 of Directive 96/71/EC;

• “posted worker in the construction sector” means a worker who—normally works in a Member State ... but, for a limited period, carries out work on behalf of the employer in Northern Ireland; andundertakes building work relating to the construction, repair, upkeep, alteration or demolition of buildings including any of the following—excavation;earthmoving;actual building work;assembly and dismantling of prefabricated elements;fitting out or installations;alterations;renovation;repairs;dismantling;demolition;maintenance;upkeep, painting and cleaning work; andimprovements.

• (3) For the purposes of the definition of “employer” in paragraph (2), paragraph 3 of Article 1 of Directive 96/71/EC is to be read as if—

• (a) in point (a)—

• (i) after “post workers to” there were inserted “ the United Kingdom or ”;

• (ii) after “operating in” there were inserted “ the United Kingdom or ”;

• (b) in point (b), after “by the group in” there were inserted “ the United Kingdom or ”;

• (c) in point (c), after “operating in” there were inserted “ the United Kingdom or ”.

Right not to suffer unauthorised deductions

4

• (1) This regulation applies if a posted worker in the construction sector is remunerated by the employer for any pay reference period commencing on or after the date these Regulations come into operation at a rate that is less than the national minimum wage.

• (2) The contractor is to be treated for the purpose of these Regulations as having made an unauthorised deduction of the relevant sum from the worker's wages.

• (3) In this regulation and in regulation 5 the “relevant sum” means the proportion of the amount due to the worker as additional remuneration in respect of the pay reference period, calculated in accordance with section 17 of the National Minimum Wage Act 1998 (non-compliance: worker entitled to additional remuneration), which is the same as the proportion of the pay reference period during which the worker carried out work relating to the employer's obligations to the contractor.

• (4) In this regulation—

• “national minimum wage” has the same meaning as in the National Minimum Wage Act 1998;

• “pay reference period” has the meaning given by regulation 6 of the National Minimum Wage Regulations 2015 .

Complaints to industrial tribunals

5

• (1) A posted worker in the construction sector may present a complaint against a contractor to an industrial tribunal that the contractor is to be treated as having made an unauthorised deduction of the relevant sum from the worker's wages by virtue of regulation 4(2).

• (2) Paragraph (1) does not apply to a posted worker in the construction sector who has—

• (a) presented a claim against the employer under Article 55 (1)(a) of the Employment Rights (Northern Ireland) Order 1996 (deductions from worker's wages in contravention of Article 45 of that Order) to an industrial tribunal in respect of the sum due; or

• (b) commenced other civil proceedings against the employer for the recovery, on a claim in contract, of the sum due.

• (3) In any complaint brought under paragraph (1), it is a defence for the contractor to show that it exercised all due diligence to ensure that the worker's employer would remunerate the worker in respect of the relevant sum due to the worker.

• (4) Subject to paragraph (6) and regulation 5A an industrial tribunal must not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of payment of the relevant wages from which the deduction was made.

• (5) Where a complaint is brought under this regulation in respect of a series of deductions, the reference in paragraph (4) to the deduction is to the last deduction in the series.

• (6) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this regulation to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

• (7) A posted worker in the construction sector who presents a complaint under this regulation is prohibited from—

• (a) presenting a complaint against the employer under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996 (deductions from worker's wages in contravention of Article 45 of that Order) to an industrial tribunal in respect of the sum due; or

• (b) commencing other civil proceedings against the employer for the recovery, on a claim in contract, of the sum due,

unless the tribunal dismisses the complaint under this regulation in accordance with paragraph (3).

Determination of complaints

6

• (1) Where a tribunal finds a complaint under regulation 5 well-founded, it must make a declaration to that effect and must order the contractor to pay to the worker the relevant sum treated as deducted by the contractor from the worker's wages.

• (2) Where a tribunal makes a declaration under paragraph (1), it may order the contractor to pay to the worker (in addition to any amount ordered to be paid under that paragraph) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.

• (3) Where, in the case of a complaint made under regulation 5, a tribunal finds that, although neither of the conditions set out in Article 45(1)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996 was satisfied with respect to the whole amount of the deduction, one of those conditions was satisfied with respect to any lesser amount, the amount of the deduction must for the purposes of paragraph (1) be treated as reduced by the amount with respect to which that condition was satisfied.

• (4) A tribunal may not order a contractor to pay or to repay to the worker any amount in respect of a deduction, or in respect of any combination of deductions, in so far as it appears to the tribunal that the contractor or the worker's employer has already paid or repaid any such amount to the worker.

Restrictions on contracting out

7

• (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports—

• (a) to exclude or limit the operation of any provision of these Regulations, or

• (b) to preclude a person from bringing proceedings under these Regulations before an industrial tribunal.

• (2) Paragraph (1) does not apply to—

• (a) any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under any of Articles 20A to 20C of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation); or

• (b) any agreement to refrain from instituting or continuing proceedings if the conditions regulating compromise agreements under these Regulations are satisfied in relation to the agreement.

• (3) For the purposes of paragraph (2)(b) the conditions regulating compromise agreements under these Regulations are that—

• (a) the agreement must be in writing;

• (b) the agreement must relate to the particular complaint;

• (c) the worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on the ability of the worker to pursue the worker's rights before an industrial tribunal;

• (d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the worker in respect of loss arising in consequence of the advice;

• (e) the agreement must identify the adviser; and

• (f) the agreement must state that the conditions regulating compromise agreements under these Regulations are satisfied.

• (4) For the purposes of paragraph (3)(c) a “relevant independent adviser” is a person who is any of the following—

• (a) a qualified lawyer;

• (b) an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union;

• (c) an advice centre worker (including a volunteer) who has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre,

but this is subject to paragraph (5).

• (5) A person is not a relevant independent adviser for the purposes of paragraph (3)(c) in relation to the worker in any of the following cases—

• (a) if the person is, is employed by, or is acting in the matter for, the employer or an associated employer;

• (b) in the case of a person within paragraph (4)(b) or (c), if the trade union or advice centre is the employer or an associated employer;

• (c) in the case of a person within paragraph (4)(c), if the worker makes a payment for the advice received.

• (6) In paragraph (4)(a) “qualified lawyer” means any of the following—

• (a) as respects Northern Ireland a barrister within the meaning of section 46(2) of the Interpretation Act (Northern Ireland) 1954 or a solicitor within the meaning of Art 4 of the Solicitors (NI) Order 1976

• (b) as respects England and Wales a person who, for the purposes of the Legal Services Act 2007 , is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act), and

• (c) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.

• (7) In paragraph (4)(b) “independent trade union” means a trade union (within the meaning given by Article 3 of the Industrial Relations (Northern Ireland) Order 1992 )which—

• (a) is not under the domination or control of an employer or a group of employers or of one or more employers' associations, and

• (b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatever) tending towards such control.

• (8) For the purposes of paragraph (5) any two employers are “associated” if—

• (a) one is a company of which the other (directly or indirectly) has control; or

• (b) both are companies of which a third person (directly or indirectly) has control.

PART 3 — Cross-border enforcement and disclosure of information

Cross-border enforcement of financial administrative penalties and fines

8

• (1) A sum payable in pursuance of an EU penalty is enforceable by the Enforcement of Judgments Office as if it were a money judgment within the meaning of the Judgments Enforcement (Northern Ireland) Order 1981

• (2) Where a competent authority in a Member State ... requests the recovery of an EU penalty, the Department is entitled to recover the amount of any sum owing as part of that EU penalty.

• (3) For the purposes of this regulation—

• “EU penalty” means a financial administrative penalty or fine including fees and surcharges relating to non-compliance with Directive 96/71/EC or Directive 2014/67/EU—imposed on a service provider established in the United Kingdom by a competent authority in a Member State ...; orconfirmed by an administrative or judicial body in a Member State ... as payable by a service provider established in the United Kingdom;

• “competent authority” means a competent authority designated by a Member State ... for the purposes of Directive 2014/67/EU.

• (4) Any amount received by the Department under this Part is to be paid into the Northern Ireland Consolidated Fund.

Disclosure of information held by Revenue and Customs

9

• (1) This regulation applies to information which is held by or on behalf of the Revenue and Customs, including information obtained before the coming into force of this regulation.

• (2) No obligation of secrecy imposed by statute or otherwise prevents the disclosure, in accordance with this regulation, of information if the disclosure is made for the purposes of replying to reasoned requests for information made by a competent authority of another Member State in accordance with Article 6 of Directive 2014/67/EU.

• (3) The information must not be disclosed except by the Revenue and Customs as defined in section 17(3) of the Commissioners for Revenue and Customs Act 2005 .

• (4) Information obtained by means of a disclosure authorised by paragraph (2) must not be further disclosed except for the purpose mentioned in that paragraph.

• (5) Nothing in this regulation authorises the making of any disclosure which is prohibited by any provision of the Data Protection Act 1998 .

• (6) Nothing in this regulation must be taken to prejudice any power to disclose information which exists apart from this regulation.

Signed

Sealed with the Official Seal of the Department for the Economy on 10th June 2016

Chris Stewart — A senior officer of the — Department for the Economy

Explanatory note

(This note is not part of the Regulations)

Footnotes

[^f00001]: Section 1(3) of the Departments Act (NI) 2016 (c.5). Formerly known as the Department of Higher and Further Education, Training and Employment; see Article 3(1)(c) and Schedule 1 of the Departments (NI) Order 1999 (S.I.1999/283 (N.I. 1) and renamed the Department for Employment and Learning; seethe Department for Employment and Learning Act (Northern Ireland) 2001 (c. 15).

[^f00002]: Article 2 of, and the Schedule to, the European Communities (Designation) Order 2000 (S.I. 2000/738); article 2 of the European Communities (Designation) Order 2009 (S.I. 2009/221).

[^f00003]: 1972 c. 68; section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 (c. 51), section 27(1) and the European Union (Amendment) Act 2008 (c. 7), section 3(3).

[^f00004]: OJ No L 18, 21.1.1997, p. 1.

[^f00005]: OJ No L 159, 28.05.2014, p. 11.

[^f00006]: 1954 c.33 (N.I)

[^f00007]: 1998 c. 39; section 17 was amended by section 8 of the Employment Act 2008 (c. 24).

[^f00010]: 1954 c. 33(N.I.)

[^f00011]: S.I 1976/582 (N.I. 12)

[^f00012]: 2007 c. 29

[^f00013]: S.I. 1992/807 (N.I. 5)

[^f00014]: S.I. 1981/226 (N.I.6)

[^f00015]: 2005 c. 11.

[^f00016]: 1998 c. 29.

Editorial notes

[^c22843961]: Section 1(3) of the Departments Act (NI) 2016 (c.5). Formerly known as the Department of Higher and Further Education, Training and Employment; see Article 3(1)(c) and Schedule 1 of the Departments (NI) Order 1999 (S.I.1999/283 (N.I. 1) and renamed the Department for Employment and Learning; seethe Department for Employment and Learning Act (Northern Ireland) 2001 (c. 15).

[^c22843971]: Article 2 of, and the Schedule to, the European Communities (Designation) Order 2000 (S.I. 2000/738); article 2 of the European Communities (Designation) Order 2009 (S.I. 2009/221).

[^c22843981]: 1972 c. 68; section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 (c. 51), section 27(1) and the European Union (Amendment) Act 2008 (c. 7), section 3(3).

[^c22843991]: OJ No L 18, 21.1.1997, p. 1.

[^c22844001]: OJ No L 159, 28.05.2014, p. 11.

[^c22844011]: 1954 c.33 (N.I)

[^c22844021]: 1998 c. 39; section 17 was amended by section 8 of the Employment Act 2008 (c. 24).

[^c22844051]: 1954 c. 33(N.I.)

[^c22844061]: S.I 1976/582 (N.I. 12)

[^c22844071]: 2007 c. 29

[^c22844081]: S.I. 1992/807 (N.I. 5)

[^c22844091]: S.I. 1981/226 (N.I.6)

[^c22844101]: 2005 c. 11.

[^c22844111]: 1998 c. 29.

[^key-75192a5c41305de239aced84d55ca0e2]: Reg. 5A inserted (27.1.2020) by The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020 (S.R. 2020/4), art. 1, Sch. para. 62

[^key-2d167a7bdee91b85b69fe83bc4347eec]: Words in reg. 5(4) inserted (27.1.2020) by The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020 (S.R. 2020/4), art. 1, Sch. para. 61

[^key-09fe076532febaff98ccd7f411e453cc]: Reg. 7(2) substituted (27.1.2020) by The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020 (S.R. 2020/4), art. 1, Sch. para. 63(a)

[^key-54f2f1729b6a6927001d6df5f00c6e27]: Words in reg. 7(3) substituted (27.1.2020) by The Industrial Tribunals (1996 Order) (Application of Conciliation Provisions) Order (Northern Ireland) 2020 (S.R. 2020/4), art. 1, Sch. para. 63(b)

[^key-07796847a5234cefd3044c11d9113860]: Words in reg. 3(2) substituted (31.12.2020) by The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/537), reg. 1(1), Sch. para. 10(2)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

[^key-bca70ad0ba98d869535536f4a1cdc0fa]: Words in reg. 3(2) omitted (31.12.2020) by virtue of The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/537), reg. 1(1), Sch. para. 10(2)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

[^key-7d48e5cbcb9168a6557e277668e1feba]: Reg. 3(3) inserted (31.12.2020) by The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/537), reg. 1(1), Sch. para. 10(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

[^key-ef2ab0c4619f5206b8004f9a06a35399]: Words in reg. 8 inserted (31.12.2020) by The Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/537), reg. 1(1), Sch. para. 10(3); 2020 c. 1, Sch. 5 para. 1(1)

Extension of time limit to facilitate conciliation before institution of proceedings

5A

• (1) In this regulation—

• (a) Day A is the day on which the posted worker in the construction sector complies with the requirement in paragraph (1) of Article 20A of the Industrial Tribunals (Northern Ireland) Order 1996 (requirement to contact Labour Relations Agency before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

• (b) Day B is the day on which that worker receives or, if earlier, is treated as receiving (by virtue of regulations made under paragraph (11) of that Article) the certificate issued under paragraph (4) of that Article.

• (2) In working out when the time limit set by regulation 5(4) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

• (3) If the time limit set by regulation 5(4) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

• (4) The power conferred on the industrial tribunal by regulation 5(6) to extend the time limit set by paragraph (4) of that regulation is exercisable in relation to that time limit as extended by this regulation.

Determination of complaints

Restrictions on contracting out