As most employers throughout Europe will no doubt be aware, the deadline for implementing the Temporary Agency Workers Directive 2008/104/EC was 5 December 2011. Although Ireland has missed the deadline (the Directive came into force in the United Kingdom on 1 October 2011), the Protection of Employees (Temporary Agency Work) Bill 2011 proposes to give effect to the Directive, and should be passed shortly. However, as the Bill will likely have retrospective effect to 5 December 2011, the implications for employers, employment agencies and agency workers in Ireland is immediate.
The purpose of the Directive is to ensure equality with regard to basic working and employment conditions, between temporary agency workers assigned to a third party hirer and comparable employees employed directly by the hirer. “Basic working and employment conditions”, broadly speaking, relate to pay (including shift premium, piece rates, Sunday premium, overtime, unsocial hours), working time, rest periods, annual leave and public holiday entitlements and access to certain employer facilities such as canteens, childcare etc. In addition, the hirer is obliged to inform the agency worker of any suitable vacant position so that they may apply. However, the Bill currently proposes to exclude any entitlements to sick pay, pension scheme payments, benefits in kind, bonuses and other financial participation schemes.
Notably the “pay” entitlements under the Bill do not apply to agency workers with permanent employment contracts with an agency who are paid at least 50% of the normal rate of pay between assignments.
From a practical perspective, when enacted, the Bill will place a positive duty on the hirer to provide the employment agency with all information necessary to ensure that the agency can discharge its obligations under the Bill. Indeed where an agency worker claims against an agency for breach of the Bill, the hirer must indemnify the agency against any loss attributable to the hirer’s failure to provide the agency with the necessary information. Compensation of up to two years’ remuneration can be awarded to an agency worker for breach of their rights.
Finally it is proposed that the Unfair Dismissals (Amendment) Act 1993 will continue to provide for unfair dismissal by agency workers. Accordingly, where an individual is hired through an employment agency and acquires more than one year of service, if dismissed, the hirer (and not the agency) will be deemed to be the employer for the purposes of any unfair dismissal claim.