Agency employees are hired by organisations who experience peaks in demand that are temporary and demonstrate no fixed patterns over time. Employment agencies are used to provide staff for the duration of the peak period. These employees are employed by the agency and provided, under contract, to an organisation e.g. administrators. This reduces cost and administration time for the organisation and avoids having to hire and then make redundant a group of employees. Once the demand ends, the contract ends.
The Protection of Employees (Temporary Agency Work) Act, 2012 provides that all temporary agency workers must have equal treatment as if they had been directly recruited by the hirer from their first day of work.
Agency workers have a right to receive equal treatment in respect of basic working and employment conditions which includes some elements of pay, breaks and access to facilities.
Certain provisions of the Protection of Employees (Temporary Agency Work) Act, 2012 came into effect on 5 December 2011. It provides that all temporary agency workers must have equal treatment as if they had been directly recruited by the hirer from their first day at work.
This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer with the following exceptions:
- work placements administered by SOLAS
- National Internship Scheme
- any vocational training, integration or retraining scheme, financed out of public money, as specified by Ministerial Order.
“Agency worker” means 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
“Basic working and employment conditions” means 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 contract of employment” means ; (a) a contract of service or (b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),
“Employee” means a person who has entered into or works (or, where the employment has ceased, entered into or worked) under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer
“Employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment
“Employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual 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 first-mentioned person.
Agency workers are entitled to the same basic working and employment conditions as if they had been hired directly by the hirer under the contract of employment to do work that is the same as or similar to the work that he or she is required to do during that assignment. Basic working and employment conditions are defined in the Act as:
- pay (as defined)
- working time
- rest periods
- rest breaks
- night work
- annual leave
- public holiday
Pay means basic pay and any pay in excess of basic pay in respect of:
- shift premium
- piece work
- unsocial hours worked
- hours worked on Sunday
It does not include sick pay, payments under a pension scheme, bonuses, maternity pay or any benefits in kind.
With effect from 16 May 2012 temporary agency workers covered by the Act have the same basic employment conditions as if they had been directly employed by the hirer under a contract of employment, at the time the agency worker was hired. The right to equal pay has retrospective effect to 5 December 2011. The other working and employment conditions referred to in the Act do not operate retrospectively.
In respect of pay only, the principle of equal treatment does not apply if the agency worker is employed under a permanent contract of employment with the agency and is paid between assignments. This is referred to as the “Swedish Derogation”.
The Act provides that the agency worker must be treated no less favourably with regard to access to collective facilities/amenities, unless less favourable treatment can be justified on objective grounds. Cost alone will not be accepted as an objective ground. Collective facilities is not defined in the Act but will include canteen, car parking and childcare facilities.
Agency workers are entitled to the same access to information on job vacancies in the hirer as a permanent employee. The hirer will need to be sure that the agency worker has access to such vacancies.
To ensure that agency workers on a series of the same or similar assignments with the same hirer have these successive assignments treated as a single assignment, only a break of three months or more between assignments will break the link between them. The first assignment date in a series is taken as the starting point.
This provision ensures that the agency worker properly accumulates service and other entitlements under employment law.
It is the responsibility of the hirer of the agency worker to provide the employment agency that employs the agency worker with the necessary information to allow them to be compliant with the Act.
Should the agency worker bring a case against the employment agency and the breach is attributed to the failure of the hirer to comply with providing the relevant information, the hirer shall indemnify the agency in respect of any loss incurred to the agency.
Complaints regarding breaches of the Act can be made to the Workplace Relations Commission within 6 months of the date of the alleged breach (12 months if the worker can show reasonable cause for the delay). A maximum of 2 years gross remuneration can be awarded under the Act.
False claims made to the Minister or the Garda Siochana are an offence and could result in summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.