Are you an agency worker? Do you engage the services of an employment agency to provide you with agency or temporary workers?
This article looks at the law surrounding agency work and aims to give a straightforward guide for agency workers, agencies, and end-users/hirers.
The Protection of Employees (Temporary Agency Work) Act, 2012 aims to provide better protection to agency workers. It provides for equal treatment for agency workers compared with regular employees who are recruited directly by the hirer of the agency workers.
The Act transposes into Irish law the EU Directive on Temporary Agency Work (2008/104/EC).
The Act came into effect in May 2012. However the pay provisions were made retrospective to December 2011 which means that workers on assignment in December 2011 are entitled to equal treatment in respect of pay from that date.
Some useful definitions:
An agency worker is someone who is employed by an employment agency under a contract of employment which will provide that the worker can be hired out to a third party (a “hirer”). The agency worker will work under the supervision and direction of the third party.
An employment agency employs the agency worker and assigns him/her to work for a hirer.
The Protection of Employees (Temporary Agency Work) Act, 2012 does not apply to:
- Managed service contracts. These are common in cleaning and catering and the worker works under the direction and supervision of their employer;
- Placement services. This is where an agency will introduce a person to an employer for a directly employed position;
- Independent contractors who are placed by an employment agency.
The Act provides for equal treatment in working conditions for agency workers from May 2012 but equal treatment in respect of pay from December 2011. They are also entitled to access to collective facilities and amenities as directly employed workers and to information about vacancies in the hirer’s workplace.
The Act places the obligations for agency workers’ equal treatment on both employment agencies and hirers.
The employment agency is responsible for basic pay, working time, rest periods, rest breaks, night work, overtime, annual leave, and public holidays.
The hirer is responsible for access to collective facilities and amenities an information on vacancies in the hirer’s workplace.
In addition the hirer must also provide the employment agency with up to date information on terms and conditions of employment to ensure that an agency worker receives equal treatment. The hirer must also inform the agency of the correct rate of pay, annual leave entitlements and any other allowances afforded to employees.
Apart from the working and employment conditions outlined above the Act does not provide for equal treatment.
“Pay” is very exhaustively defined in the Act and includes basic pay, shift work, overtime payments, piece work, unsocial hours worked, hours worked on a Sunday.
The Act prescribes that the agency worker should receive the same pay as if he were employed directly by the hirer to do the same or a similar job.
The agency worker is entitled to the same rest breaks and annual leave entitlements as if he was employed directly by the hirer and must be treated no less favourably than a direct recruit in relation to collective facilities and amenities, unless the hirer can provide an “objective justification” for less favourable treatment.
The Swedish Derogation
Derogation from the obligation of equal treatment in relation to pay only is allowed in respect of employees who have a contract of indefinite duration with the employment agency. Basically this means that such workers do not have to received equal treatment re pay provided they are paid between assignments.
There are a number of conditions attached to this derogation.
The Act also sets out some offences associated with agency work, for example charging an agency worker a placement fee and anti-penalisation measures for whistle blowing.
Claims by agency workers against employment agencies or hirers can be brought to the Workplace Relations Commission (WRC) who can award up to 2 years remuneration by way of compensation and/or reinstatement/re-engagement.
It is possible for the employment agency to be indemnified against losses arising from claims because of inaccurate informant provided by the hirer.
Agency workers, for the purposes of most employment related legislation, are the employees of the employment agency. However, for unfair dismissal legislation purposes the hirer is deemed to be the employer. This is so regardless of who pays the worker.
However employment rights have also been conferred on agency workers as against the end user/hirer by virtue of an “implied contract of service”. Instructive cases in this regard are Diageo Global Supply v Mary Rooney  and Dacas v Brook Street Bureau where the agency worker was deemed to be an employee of the end user.
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