Protection of Employees (Temporary Agency Work) Act 2012
On 16 May 2012, the Protection of Employees (Temporary Agency Work) Act 2012 (the “Agency Workers Act”) was signed into law. The Act transposed into Irish law Directive 2008/104/EC on temporary agency work. The Act creates new rights for agency workers, chiefly equal treatment with employees of the hirer. It marks an important landmark in the protection of the rights of agency workers.
IBEC, in its submission on the Bill to the Select Committee on Jobs, Enterprise and Innovation on 25 January 2012 noted that before 5 December 2011 there were up to 40,000 agency workers in Ireland. Often agency workers are those with the weakest negotiating position in agreeing terms of engagement and, before this Act, were not automatically entitled to be treated equally with employees of the hirer.
Core protection– equal treatment as if employee of hirer
The core of the Directive is the requirement that agency workers are treated equally with comparable employees of the end-user (Art 5).
Section 6 of the Agency Workers Act provides that subject to any collective agreement, approved by the Labour Court under s 8 of the Act, an agency worker shall for the duration of his assignment with a hirer, be entitled to the same basic working and employment conditions as those to which he would have been entitled if he had been employed directly by the hirer.
Section 2 of the Act defines “basic working and employment conditions” as terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to:
but does not include or sick pay or payments under any pension scheme.
Access to employment and collective facilities
The Act also provides for the rights of the agency worker to not less favourable treatment than an employee of the hirer to use of collective facilities, e.g. canteen, childcare and transport facilities. The agency worker can be treated less favourably if there are “objective grounds” for doing so (s 14).
The hirer must also, when informing an employee of any vacant position of employment with the hirer, inform any agency worker of that vacancy (s 11).
Redress
The provisions in relation to redress under the Act are contained in Schedule 2 to the Act. Complaints lie against the “hirer” for claims in relation to access to employment; collective facilities and amenities; and penalisation.
Complaints lie against the agency for claims in relation to equal treatment; for charging the agency worker a fee for introducing him/her to the hirer; and penalisation.
Complaints lie to a rights commissioner, with appeal to the Labour Court, with appeal on a point of law to the High Court. The Labour Court decisions are enforceable by the Circuit Court.
The rights commissioner can declare that the complaint was or was not well founded, require the employer to take a specified course of action (including reinstatement or re-engagement), and/or require the employer to pay the employee such amount as is just and equitable having regard to all the circumstances but not exceeding two years pay.