HSE Management who engage agency workers to cover a short-term need, such as an upturn in hospital admissions, sickness, absence or maternity leave, should be aware of the potentially far-reaching consequences of the Temporary Agency Workers Directive (the “Directive”). The Directive is due to be transposed into national law before 5 December 2011. In 2010, the HSE reportedly spent €199 million on agency staff, with €76.7 million of that figure spent on nursing staff.
The Directive sets out a number of objectives which are focused on improving temporary agency work and protecting temporary agency workers. The Directive requires Member States to:
- undertake a review of any restrictions and prohibitions on the use of temporary agency work;
- ensure equivalent basic working and employment conditions for temporary agency workers; and
- guarantee access for temporary agency workers to employment, collective facilities and vocational training.
The protections that currently exist for agency workers are piecemeal and fall far short of treatment equivalent to that afforded to employees who are engaged directly.
For the purposes of this article, we examine the potential impact of the Directive where agency staff are contracted to work with the HSE or other healthcare facilities.
The current statutory position on the rights of agency workers is confusing. The agency is responsible for an agency worker’s statutory rights under various statutes such as the Payment of Wages Act, 1991, Maternity Protection Acts, 1994-2004, Employment Equality Acts, 1998-2008, and the Redundancy Payments Acts, 1967-2007. That said, the undertaking is deemed to be the employer in circumstances where an agency worker is dismissed and takes a claim under the provisions of the Unfair Dismissals Acts, 1997-2007. The Directive does not change the employment status of agency workers or their entitlement to existing employment rights. The so-called “triangular relationship” between the temporary agency worker, the employment agency and the undertaking will continue, such that the employment agency that pays the agency worker’s wage is the employer.
The question as to what constitutes the appropriate level of pay for agency workers is particularly relevant for persons working in the health sector. Currently, agency nurses are paid approximately at the 9th–10th point of the staff nurse salary scale, with hourly rates of up to €28. All agency nurses are paid at the same level regardless of their experience.
The HSE has proposed that agency nurses with less than two years’ experience should get paid at the minimum point of a new, reduced pay scale, with more experienced staff paid at the 5th point at the existing permanent staff pay scale.
‘Pay’ is not defined in the Directive. There is considerable ambiguity as to whether an agency worker is merely entitled to the same hourly rate as an employee, or whether pay also includes benefits such as sick pay, maternity pay and profit sharing schemes which an undertaking might provide to its employees. The UK can provide some guidance on this point: it defines pay as not just including the basic hourly rate, but rather all pay for work done (such as bonus), but not extending to benefits such as pension and sick pay, which employees of an undertaking might enjoy because of the permanency/longevity of their relationship with their employer.
The provisions of the Directive are ‘fall back’ ones that apply if the Government does not secure the agreement of the social partners to arrangements which would ensure the objective of the Directive is achieved. It should be noted that it is open to the Irish Government to agree derogations to the equal treatment provisions of the Directive, once agency workers are still afforded an adequate level of protection. For example, the Government could agree that an agency worker must have a qualifying period of service before they can avail of the protections of the Directive and, in default of this, agency workers are entitled to the protection of the Directive from their first day of service. The UK, which has already passed legislation transposing the Directive, has agreed such a derogation to the effect that agency workers in the UK do not become entitled to the protection of the Directive until after 12 weeks service.
The same concerns outlined above in respect of pay arise in relation to working conditions. By way of example, an agency worker is currently only entitled to 20 days statutory holidays. However, when the Directive is transposed, an agency worker may well become entitled to the contractual annual leave entitlement of a direct employee of the undertaking, if greater.
Another difficulty which employers may have with the Directive is in identifying the terms and conditions to which an agency worker is entitled. The Directive states that basic working conditions include those set out in statute, collective agreements and/or other binding general provisions in force in a sector. However, many employers have fluid rates of pay which are based on the rate at which they initially hired an employee along with performance-related increases. This would leave the undertaking with a dilemma as to what framework it can use to ensure that the agency worker is treated equally to one of its own employees. This dilemma is exacerbated in situations where an agency worker has been engaged by that undertaking to carry out a unique task, which no employee of the undertaking undertakes or has undertaken in the past.
The Directive also provides that agency workers cannot be prevented from taking up employment with the undertaking where they have been placed. They must also be informed of any permanent employment opportunities that arise in the undertaking. Further, agency workers must be given equal access to amenities such as workplace canteens, gyms and transport, together with vocational training, unless a difference in treatment can be justified by objective reasons.
In closing, the terms of the Directive could prove onerous for employers in the healthcare sector as they might serve to make the engagement of agency workers unattractive and logistically challenging. The Government, in agreeing the form in which the Directive will be transposed into Irish law, should ensure that the objectives of the Directive are met in order to guarantee that the engagement of agency workers will not be prohibitively expensive or logistically cumbersome for employers.