The deadline for the implementation of the Temporary Agency Workers Directive (2008/104/EC) (the "Directive") was 5 December 2011. This means that Ireland missed the deadline for implementation of the Directive, but nonetheless is bound by it. The Protection of Employees (Temporary Agency Work) Act, 2012 (the "Act") transposes the EU Directive into Irish law since the 16th May, 2012.

The Act is aimed at harmonising the current irregularities and inconsistencies across member states as regards Agency Workers. It also seeks to ensure that the working and employment terms and conditions of agency workers are on a par with those of an employee engaged by the employer directly.

The Act applies to workers with a contract of employment or employment relationship with an employment agency who are assigned to "user undertakings" on a temporary basis, during which time they are subject to the direction, control and supervision of such "user undertakings."

Its' application relates to both public and private undertakings engaged in an economic activity. Such economic activity may be for gain or not and applies irrespective of the engagement status of the agency worker, i.e. full-time, part-time or on a fixed-term basis. There is no doubt that this legislation will have a huge impact on agency and employer relationships going forward. Under the new legislation, there is a potential liability to both agencies and/or employers depending on the nature of the alleged breach.

The Act provides for equality in respect of the following basic working and employment conditions:-

  • duration of working time, rest breaks, night work, annual leave and public holidays;
  • Equal access to collective facilities and amenities such as canteen facilities, childcare facilities and access to transport facilities unless there are objective grounds that justify less favourable treatment;

Pay

Pay is defined in the Bill as basic pay, shift premium, piece rates, overtime premium, unsocial hours premium and Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee. Other pay components will not be included, such as, occupational pension schemes, sick pay schemes, benefit in kind and bonuses.

Member States are entitled to make an exception allowing for differentials in pay where the agency worker has a permanent contract of employment with an employment agency and thereby would continue to be paid between work assignments.

Equal treatment applies from "day 1" of the temporary agency worker's assignment. This means that there is no qualifying service period in Ireland.

The Act contains certain prohibitions on:-

  • Agencies exploiting the relationship with an agency worker by charging the worker fees for arranging recruitment and employment; and
  • Clauses in agreements that prevent the user undertaking from employing the agency worker after his or her assignment has ended.

In light of the developments set out above companies should immediately take practical steps to limit their liability:-

  • Undertake audit of the terms and conditions of engagement of the temporary agency workers engaged.
  • Consider whether terms and conditions offered to temporary agency workers comply with equal treatment requirements.
  • Review contractual documentation with employment agencies.

Please take note that the legislation has retrospective effect back to December, 2011 and it remains to be seen if such a provision is constitutional.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.