The Protection of Employees (Temporary Agency Work) Bill, 2011 was published in December 2011 and the Government had invited all interested parties to make suggestions regarding the wording and potential amendments to the Bill.
Peninsula Business Services have submitted their own proposal on this to the Government identifying some areas where we felt the proposed Bill did not go far enough or provide enough clarity.
A recent report has shown that there have been some suggestions taken on board by the government at the Committee stage of the process and this has caused mixed reactions.
One such amendment, and probably the most crucial one, has been the increased clarification on the definition of a Comparator for the purposes of claiming equal treatment between agency workers and comparable workers. The original definition did not take into account length of service or skills/qualifications. Employers were afraid that this could lead to a situation where an agency worker could use a person on the very top of a Company pay scale as a comparator if they did similar work, regardless of the increased length of service/experience of that permanent employee.
The new Section 3(2) states:
“Where length of service or the possession of a particular skill or qualification is a material consideration for the purpose of determining the basic working and employment conditions of an employee of the hirer of an agency worker, it shall also be a material consideration for the purpose of determining whether, in relation to that agency worker, that employee is a comparable employee or not”.
The new Section 3 also removes one of the three tests that must be passed for a permanent worker in the user enterprise to be a comparator – that the work done by the agency worker must be of “equal value”. This is a test that originates in equality law, where indirect discrimination often arises, and was seen as being less important in the context of this legislation. Its removal makes it slightly less difficult to find a comparator.
Another notable change is regarding the legislation permitting employment agencies to charge workers for safety clothing and/or Garda vetting costs. It is unlikely that this amendment will be retained as Employee unions have come out strong in their opposition of this and ICTU have argued that this directly contravenes Section 8.5 of the 2005 Safety, Health and Welfare at Work Act, which says:
“Every employer shall ensure that any measures taken by him or her relating to safety, health and welfare at work do not involve financial cost to his or her employees.”
This section of the 2005 Act transposes Article 6.5 of the EU safety directive 89/391/EEC of 1989, which states that “measures related to safety, hygiene and health and work may in no circumstances involve the workers in financial cost”.
Article 2 of the Agency Worker Directive itself – which the current Bill is transposing into Irish law, also states that being an agency worker “shall not justify different treatment with respect to working conditions inasmuch as the protection of safety and health at work are involved, especially as regards access to personal protective equipment”.
The Department of Jobs, Enterprise andInnovationhave already come under pressure on this and subsequently relented by stating that it may be reversed by the Minister at the report stage of the process.
The Minister has stated “I take the opportunity to advise the committee that I intend to re-examine this section further as regards section 12(2)(b) and (c) in advance of Report Stage as it may be that the aspects being provided for may already be appropriately provided for in extant legislation. This is an issue that arose. While we have put down a marker, we recognise that it is not satisfactory and will be reverting to it. We have signalled that there is an issue that we must examine.”
The final amendment is in relation to the Swedish Derogation provision in the bill which provides an exemption for Agencies from equal treatment for permanent Agency Workers employed between assignments, provided that they pay 50% of the wage rate of the last assignment (or at least the National Minimum Wage) during the gap.
A new Section 6(2) (a) provides that before an Agency Worker enters into a permanent contract of employment with the Agency, the Agency has to notify the worker in writing that this derogation will be used. This gives the Agency Worker the option of refusing such a permanent Agency contract.
There may be further amendments at Report Stage of the process, and it is interesting how previous legislation has almost put a stranglehold on this Bill and ensured against any change that could potentially work in favour of the employer.
If your business employs Agency Workers or you use Agency Workers and you are unsure of your potential liability please contact the Peninsula Business Services Advice Line on 01 855 5050 and speak to one of our advisors.
