- Directive required to be transposed by 5 December 2011;
Directive provisions include:
- equal pay and conditions of agency workers comparable to employees of end user organisation;
- requirement to be informed of permanent employment opportunities; and
- equal access to an employer’s amenities (e.g. gym, transport, staff restaurant, vocational training) unless a difference in treatment can justified; and
- Still awaiting publication of the Temporary Agency Workers Bill in Ireland which should inter alia outline a qualifying period for equal treatment and define the meaning of “pay” which is not defined in the Directive
The EU Temporary Workers Directive is required to be transposed into Irish law by 5 December 2011. The Government Legislation Programme to the end of 2011 cites that the Temporary Agency Workers Bill is due for publication before the end of 2011. However, before going to press with our Ezine, sources within the Oireachtas offices have outlined that the drafting is still with the Minister for Jobs, Enterprise and Innovation’s office and has not yet reached the Bill’s office.
The introduction of this legislation will have far reaching implications for employers who engage agency workers. As it currently stands, the agency is responsible for an agency worker’s statutory rights under various employment statutes including the Payment of Wages Act, 1991, the Redundancy Payments Acts, 1967-2007, and the Maternity Protection Acts, 1994-2004. However, under the Unfair Dismissals Acts, 1977-2007, where an agency worker is dismissed and takes a claim, their rights under the provisions of the Acts are exercised against the employer or end user organisation.
The primary objective of the Directive is to ensure that agency workers employed by employment agencies and placed in an end user organisation are provided with equal basic terms and conditions comparable to direct employees of the end user organisation who carry out similar or same work.
Under the Directive, the Government is able to apply derogations to the equal treatment provisions once agency workers are still afforded an adequate level of protection. A very important aspect of this is the qualifying period. The fall back provision of the Directive means that an agency worker qualifies for equal treatment from day one of employment with the end user organisation. However, on consensus between the social partners a derogation can be applied. In the UK, Ireland’s closest market, agreement was reached between unions and employers for a 12 week qualifying period before equal treatment in terms of basic working conditions (including pay) will apply. Their legislation transposing the legislation, the Agency Workers Regulations 2010 came into effect on 1 October. In September, it was reported in the press that the Irish Business Employers Confederation (IBEC) are seeking a 12 month qualifying period. Proposals from the Minister’s Office suggest a possible six month qualifying period to which some trade unions have already signalled their opposition.
There is considerable ambiguity as to what constitutes ‘pay’ as it is not defined in the Directive. Clarification is required as to whether or not an agency worker is entitled to the same hourly rate as a direct employee of the end user organisation or whether pay also includes benefits such as sick pay schemes, maternity leave pay schemes and bonus or profit share schemes operated by employers for their staff. It is likely that the Government may look to the UK legislation which defines pay as including the basic hourly rate and all pay for work done, including bonuses. However, it is not extended to benefits such as pension or sick pay which employees acquire due to the longevity of the employment relationship.
The application of the terms of the Directive may prove to be onerous on all employers, and particularly those in sectors such as manufacturing and health where large numbers of agency staff are employed. We await to see the Bill and how the Directive will be transposed into Irish law. We will keep you abreast of any developments.