Ireland’s failure to implement the Temporary Agency Work Directive on time by 5 December has been widely reported. The Protection of Employees (Temporary Agency Work) Bill 2011, which will implement the Directive, has now been published.

As expected, the Bill is stated to come into effect from 5 December 2011. Consequently, it is likely that employers will be obliged to backdate equal pay once the legislation comes into force. The retrospective provisions will not apply to the offences created by the Bill.

The Bill’s provisions apply only to those who work under the supervision and direction of hirers. Consequently self-employed persons, contractors and those working on managed service contracts are likely to be excluded.

Under the Bill agency workers must be treated equally in respect of basic working conditions. Basic working conditions include working time; rest periods; rest breaks; night work; annual leave; public holidays; and access to collective facilities such as canteen and childcare facilities.

The definition of ‘pay’ includes basic pay; shift premium; piece rates; overtime; unsocial hours premium; and Sunday premium. The Minister previously indicated that this is an exhaustive list and so bonus payments, pension schemes, sick pay schemes and benefits in kind are not within the scope of the Bill.

The so-called Swedish Derogation or “permanent contract exclusion” has been included in the Bill. Therefore agency workers who are employed by an employment agency under a permanent contract of employment are not affected, where such workers are paid between assignments.

There is no qualifying period of service for equal treatment, unlike the position in the UK where a 12 week qualifying period has been adopted. Agency workers must receive equal treatment from day one.

The Bill is expected to become law in early 2012. However the provisions of the Bill are subject to change while it goes through the legislative process.

Contributed by Anne O’Connell.