The protection of temporary workers in Ireland

Agency Workers legislation explained

worker at photocopier The Protection of Employees ( Temporary Agency Work) Act 2012 brought into Irish law the main provisions

of the Agency Workers Directive (2008/104/EC) on 16th May 2012.

What types of businesses are affected?

There are mainly two types of businesses affected by this act namely:

employment agencies who employ agency workers; and
those businesses to which agency workers are designated.

What is an agency worker?

The definition of agency worker in the Act is an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

A managed contract is not covered by the act. This is where the contractor supervises and controls the worker on a daily basis, e.g. Cleaning services, security providers. Each situation would have to be checked to ensure that it is a genuine managed contract, and not an attempt to cover up a temporary agency arrangement.

Other exclusions are workplacements by SOLAS, National internship scheme or other similar scheme financed out of the public purse.

What about hiring or recruitment fees?

The agency is prohibited from charging hiring or recruitment fees to the worker under the The Protection of Employees ( Temporary Agency Work) Act 2012

What are the main changes which The Protection of Employees ( Temporary Agency Work) Act 2012 brought about?

The main change is that now under the act an agency worker is entitled to the same basic working conditions as if they were employed by the hirer directly. This includes pay, working time, rest periods, rest breaks during the working day, night work, overtime, annual leave and public holidays and equal access to the facilities provided for the hirer's worker's, such as canteen facilities.

The hirer must also notify the agency worker of any vacancy which arises so that the agency worker may apply for the position, if they wish.

How does the Act define “basic working and employment conditions” ?

These can be summed up as follows:

Working Time
Rest Periods
Rest Breaks
Night Work
Annual Leave
Public Holidays
Pay

To pay or not to pay

Pay is defined in the Act as:

Basic Pay

Shift Premium
Piece work
Overtime
Unsocial Hours Worked
Hours Worked on a Sunday

Sick pay,pension schemes and financial participation schemes are not regarded as pay.

I have been given a series of assignments. What are my rights?

Under the Act (S7) you cannot be put back on a new contract each time a new assignment starts, unless there is a three month break between assignments. This would, in effect, deny you theopportunity to accumulate service and other such entitlements.

What about the “Swedish Derogation”

This is about pay. Where an agency worker is employed under a permanent contract with the agency and receives pay in between assignments, then the equal treatment provisions are not applicable.

To avail of this exemption, the following hurdle must be crossed:

The worker’s contract with the agency must be permanent
The worker must have received this contract before their first assignment
The minimum pay which the worker must receive from the agency between assignments must equal at least half the pay they would have received at their last assignment. This is subject to the minimum wage provisions.

How does a collective agreement affect the act?

A collective agreement made between a trade union and an employer can allow derogation from the Act. The agreement must be registered with the Labour Court. The Court is obliged to examine the agreement in great detail prior to registration, to ensure that the rights of temporary workers are protected.

How can I take a case against my employer, if I believe they have contravened the Act?

In relation to breaches of pay and conditions provisions, the agency is liable. The hirer carries the liability in relation to access to information and the provision of access to collective facilities, such as canteen, etc. If the hirer does not provide the necessary information to the agency, then the hirer becomes liable and must indemnify the agency in the event of a claim.

A claim must be submitted to the Workplace Relations Commission within six months of the suspected breach.

Submitting a claim is not a straightforward as you might assume. There are a number of matters which must be proven in each case. You should take expert advice well in advance of the time to claim, running out.

A recent case which highlights the need for expert advice before submitting a claim is ADJ-00019796. It was an unfair dismissal case. The agency worker took the case against the employment agency with whom they had a contract. The agency worker chose to represent themselves. They were paid by the agency. They considered themselves as an employee of the agency. In most cases, that would be the case. There is an exception however. Section 13 of the Unfair Dismissal (Amendment) Act 1993 states that in the case of an unfair dismissal claim, it is the hirer who is deemed to be the employer. The hirer is the busness to which the agency worker is sent and works with.

The worker had taken their claim against the wrong respondent. They were out of time then to commence proceedings against the correct respondent, the hirer.

Don’t take risks with your case. Take professional, expert advice. It doesn’t cost much, and it can save you a lot.

Where can I get more information?

This is a summary only of the main provisions of the Act.

We can help you with your claim.

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