Background

As you may be aware the Temporary Agency Workers Directive (2008/104/EC) implementation date is looming. Under the Directive, Ireland should have implemented Irish legislation implementing the directive in Ireland by Monday 5 December. This has not happened and the Government is yet to even publish a draft bill. This means that the Government may be liable under EU principles for a breach of EU law for the delay in implementation.

Purpose of the Directive

The purpose of the Directive is to provide equal rights to agency workers to those of direct employees. This equal treatment is in relation to basic working conditions and access to employment opportunities.

Delay

The Directive allows Member States to agree derogation with the relevant social partners on when the directive would apply to agency workers. This means that there was scope to agree that the rules would not apply until an agency worker had achieved a certain qualification period (length of service) with an end user employer. IBEC had sought a 12 month period before the equal treatment rules would apply to agency workers. The UK has brought in a 12 week qualifying period and implemented the Directive into UK law on 1 October 2011. Unfortunately the social partners in Ireland have not been able to reach an agreement on the qualifying period. It appears that ICTU were seeking concessions in relation to Sunday working rates, employment regulation orders and new arrangements on collective bargaining as part of the negotiations. These were issues the Minister Richard Bruton was unwilling to concede and so the talks broke down. Agreement with the social partners was essential to bring in derogation.

What Now?

The Government has confirmed that it will push the legislation through Cabinet before Christmas in order to implement the Directive as soon as possible.

The Effect

The Minister last night advised employer representatives that from Monday agency workers will be entitled to the same pay as employees who are directly recruited. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as including the following:

• Basic pay
• Shift premium
• Piece rates
• Overtime premium
• Unsocial hours premium
• Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee.

The Bill will also provide for equal treatment in respect of the following:

• Working time
• Rest periods
• Rest breaks
• Night work
• Annual leave
• Public holidays

Temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of the end user employer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and must be informed about vacant posts.

The Minister has confirmed that the following will not be included:

• Occupational Pension schemes
• Financial participation schemes
• Sick pay schemes
• Benefit in kind
• Bonus payments

What Should You Do?

• Review your current agency arrangements to ascertain how many people you have working who would be classed as ‘agency workers’ and that you will need to assess;
• Ascertain which of your current employee positions each agency worker is comparable to for the purposes of equal treatment;
• Calculate and document what changes would be required in order to get to equal treatment between the two positions to make the conditions equal in terms of the headings set out above;
• Review your agency arrangements to decide if you will continue to work under the same arrangements with the employment agency;
• Check the contract review and termination provisions of your supply agreements with the agency providers;
• Look at what changes need to made to internal systems and communications to include agency workers in these systems going forward.
• Review current policies for the hiring of temporary workers and ensure any changes are communicated to the relevant hiring managers

The Minister has proposed to back-date the incoming legislation to the 5 December 2011 this means that employers will have to try to comply with the unknown before it is even published. It is still unclear what the full effect of this legislation could be and when it will apply to private sector employers.

To discuss your current agency worker arrangements please contact Linda Hynes on 01 639 3000 or lhynes@leman.ie

Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.