Temporary Agency Worker Directive

Temporary Agency Work Directive (2008/104/EC) The rights of temporary agency workers continue to be contentious issue in Ireland.

The Directive proposed in 2002 failed to pass the second stage on the 12th March 2008. It was not until October 2008 that it was adopted. Under EU law Member States must transpose the Directive within three years of its entry into force; therefore Ireland had until the 5th December 2011 to implement the provisions.

Essentially, the Directive sets out to create equal treatmen between permanent and temporary staff. Under the Directive Article 5 provides that ‘the basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by the undertaking.”

This would include:

  • Pay
  • Working time
  • Overtime
  • Rest breaks
  • Night work Holidays and public holidays
  • Pay-related benefits
  • Bonuses Sick pay Pension contributions
  • Concerns

All Directives must be passed by the Oireachtas and while the Directive is effective as of the 5th December 2011 it has not passed into Irish law, therefore the temporary agency worker has no recourse if their employer fails to comply with the Directive.

It would appear that they would have to pursue an action through the civil courts. This means that they would not be able to make an application to the Labour Relations Commission, the Employment Appeal Tribunal or the Employment Equality Tribunal. A further difficulty arises if differences in treatment of temporary agency worker can be justified by objective reasons. There is also the fact that there is no qualifying period in the Directive for the principle of equal treatment to apply.

The default position is that these rights will apply from ‘the 5th of December to temporary assignment. Further concerns arise regarding the issue of equal treatment; this means that treatment including benefits must be equal across the board which is based on an existing comparable worker.

This could be problematic as agency workers are often engaged on an ad-hoc contingency basis where there are no comparable workers to compare like for like work. Pay’ is not defined in the Directive. Therefore, it may be argued that a default position is applied that temporary agency workers will be entitled to the same rights as permanent employees to all pay rates.

Other conditions

Temporary agency workers must be informed of any permanent employment opportunities; and they must be given equal access to amenities or collective facilities such as; Access to canteen; Use of common transport; Child care arrangement; Vocational/education/or skills training. Furthermore under the Unfair Dismissals Acts 1997-2007, the employer is deemed to be the person for whom the worker actually works (the end user organisation). Compliance with health and safety requirements is also the responsibility of the organisation for which the agency worker is actually working.

Current protection

The Directive contains several parallels with:

  • Terms of Employment (Information) Acts 1994-2001
  • Payment of Wages Act, 1991
  • Organisation of Working Time Act, 1997
  • Maternity Protection Acts, 1994-2004
  • Adoptive Leave Acts, 1995-2005
  • Carer‟s Leave Act 2001
  • Protection of Young Persons (Employment) Act, 1996
  • National Minimum Wage Act, 2000
  • Parental Leave Acts, 1998-2006
  • Employment Equality Acts, 1998-2008
  • Protection of Workers (Part-Time Work) Act, 2001
  • Redundancy Payments Acts 1967-2007
  • EC (Protection of Employees on Transfer of Undertakings) Regulations, 2003Registered Employment Agreements for Construction and Electrical sectors Determinations of the Labour Court under section 6 of Industrial Relations (Amendment) Act 2001.

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