The Protection of Employees (Temporary Agency Work) Bill 2011, which is the legislation required to transpose the Temporary Agency Work Directive into Irish law, was published, albeit behind schedule, on 16 December 2011. The Bill has completed its passage through the Dáil and is currently before the Seanad where it has completed the Committee stage. It will then be returned to the Dáil and the intention is that these final stages will be scheduled for the week commencing 26 March 2012. Accordingly, it is likely to be enacted some time next month.
The purpose of the Bill is to give equal treatment in terms of basic working and employment conditions for temporary agency workers, i.e., such workers must be treated as if they were recruited directly by the hirer to do the same job. The definition of “basic working and employment conditions” includes pay, working time, annual leave, public holidays, and access to 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.
As the Bill is stated to come into effect on 5 December 2011 certain of its provisions will have retrospective effect. Once the finalised legislation comes into force, it is likely that the obligation to provide equal pay will be backdated to 5 December 2011. The retrospective provisions will not, however, apply to the sections of the Bill that create offences.
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 excluded from its scope.
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, provided that the employee is paid, in between assignments, a minimum of half the sum he/she was paid on his/her last assignment.
Unlike the situation in the UK, there is no qualifying period for equal treatment included in the Irish Bill and so agency workers must receive equal treatment from day one.
As the employer, the employment agency has primary responsibility for ensuring that equal treatment applies to the agency worker. However, this is dependent on the employment agency being provided with sufficient up-to-date information by the hirer. There is a duty on the hirer to provide the employment agency with all reasonable information necessary for it to comply with its obligations under the Bill. If an agency worker brings a case against the employment agency and wins because the hirer failed to give the employment agency the information it required under the Bill, the hirer will have to indemnify the employment agency.
However, the hirer is responsible for:
- informing the agency workers of any vacant position of employment where such information would be given to a comparable employee and
- ensuring that an agency worker is treated the same as a comparable employee of the hirer in respect of “collective facilities” such as canteens, child care facilities and transport services
The redress provisions are modelled on the provisions in other employee protection legislation, such as in respect of fixed term work. As currently drafted, the Bill provides that complaints are to be brought to a Rights Commissioner with a right of appeal to the Labour Court. However, by the time the Bill is enacted it is envisaged that reference will be made to the newly established Workplace Relations Customer Service.
