The Government has launched a consultation paper dealing with aspects of the Temporary Agency Workers Directive and is seeking submissions from interested parties. The Directive published in 2008 must be transposed into Irish law by 5 December 2011. The Temporary Agency Workers Directive represents the final piece of protection for atypical workers, with domestic legislation already in place for the protection of part-time workers and fixed-term workers.
A key provision of the Directive is that temporary agency workers will be entitled to the same basic working and employment conditions (including pay) as if they had been directly recruited to the position. The provisions of the Directive allow social partners at national level to negotiate a qualifying period before equal treatment provisions kick in. This qualifying period however does not form part of the consultation process.
The consultation document raises some interesting questions in relation to pay and holiday protection. On the issue of pay and defining it for the purposes of national legislation, should it be basic pay only or should it include premium payments such as overtime and shift allowances? In relation to holiday protection, agency workers already have the benefit of working time and holiday protections under the Organisation of Working Time Act 1997. The provisions of the new Directive also entitle them to benefits of this nature which their comparable permanent workers have, above the statutory minimum. This raises a practical issue as to how this would work in reality given the short term nature of agency work. The Directive is silent on who will be liable for failure to implement equal treatment – will it be the employment agency or the end user company?
The above highlights just some of the practical difficulties which need to be addressed in contemplating the provisions of the domestic legislation to transpose the Directive. The consultation process will undoubtedly kick start the negotiation process between the various interested parties (including agency workers themselves, temporary work agencies and employers who use agency workers). It will be interesting to see the final format the domestic legislation will take, having considered the potentially difficult issues set out above. We will keep you informed of developments on this topic.