The Employment Agencies Regulation Bill 2009 was published on Friday last, 10th July. The main purpose of the Bill is to strengthen the regulatory framework for the operation of employment agency services in the State by requiring employment agencies to be licensed in Ireland. The licensing requirement applies to both domestic and foreign based employment agencies, although foreign employment agencies who can establish that they are already licensed or regulated in a member state of the EEA may be entitled to operate without obtaining a licence in the State.
The Bill provides that it will be an offence for employers to enter into an agreement with an employment agency for the supply of workers unless it is licensed or "recognised". Employers will be able to check which employment agencies are licensed or "recognised" on a list to be published on the internet by the Department of Enterprise Trade and Employment. In the event that an employment agency contravenes the provisions of the Bill, then the Minister will have the power to prohibit that agency from carrying on business in the State for a period of up to three years. The Bill also provides for:
- The prosecution of offenders in absentia – this provision is intended to ensure that the licensing requirements will be enforceable against employment agencies who may not have a presence within the State but who supply workers to Irish employers;
- Enforcement of Irish Judgments in other EEA Member State jurisdictions – this provision is necessary to ensure the enforceability of decisions of Rights Commissioners, the Labour Court and the EAT in relation to employment agency workers against employment agencies based outside of the jurisdiction;
- Whistleblowing protection – this provision prohibits employers from penalising employees who make a complaint to An Garda Siochana about breaches of the legislation;
- It shall be an offence for a placement agency to charge a job seeker a fee for providing its services to the job seeker, including training. It shall also be an offence for an employer to employ a job seeker who has been charged a fee by a placement agency (although an employer will be entitled to avail of a defence that it was not aware that such a fee was charged by the placement agency);
- A Code of Practice is to be prepared setting out practices and standards to provide practical guidance to queries for the purposes of complying with the legislation.
Minister Dara Colleary T.D. has stated that a provision is currently being drafted for inclusion in the Bill, prohibiting the use by employers of agency workers in an official strike or lock out situation. This provision is the result of a commitment given to ICTU in the Review and Transitional Agreement concluded by the social partners last Autumn and will strengthen the armoury of unions at a time when employers are increasingly at risk of disturbance to their business through industrial action.
This Bill does not deal with the issue of equal rights for agency workers. Whilst the EU has concluded the Directive on Temporary Agency Work, which includes a default position of equal pay and conditions for agency workers from the first day of their employment, Ireland has three years to transpose the directive into domestic law. Furthermore, Ireland has availed of a derogation in the Directive which entitles individual Member States to establish a Framework on the treatment of Agency Workers through collective agreement with the social partners. The government has agreed that such a framework in this jurisdiction will include rights for agency workers appropriate to the Irish economy, taking into account the need for a flexible labour supply.
The Bill has only just been published and as the Dail is now in Recess, it will be some time before we see any progress of this Bill and there is no indication as yet as to when it is envisaged that the Employment Agencies Regulation Bill 2009 might be enacted.