The long awaited Agency Worker Guidance Notes have finally been issued by the Government, with these guidance notes intended to complement the legislation that was introduced which gave effect to the EU Directive on Temporary Agency Work. This legislation has taken effect and applies to all agency workers as of 5th December 2011.
To briefly recap on previous articles, the Directive aims to protect Temporary Agency Workers and in so doing applies the principle of equal treatment to their basic working and employment conditions e.g. pay, annual leave etc. in the same way as if those workers were directly recruited by the Hirer to do the same job.
A Bill to give effect to the Directive was published in December 2011, and following a series of Seanad debates is was submitted to President Higgins, and the Protection of Employees (Temporary Agency Work) Act, 2012 was ratified on 16th May 2012.
It was at this point that the Government announced that comprehensive guidance notes would be issued to compliment this legislation and in September 2012 the notes were published. However, the guidance is far from comprehensive and serves only to repeat what is already stated in the Act.
We have provided below a summary of some of the key guidance provided;
1. Who the Act does/does not apply to
It applies to Temporary Agency Workers who are employed by an Employment Agency under a contract of employment and are assigned to work temporarily for, and under the direction and supervision of, a Hirer or End User.
The Act will not apply to the following categories of workers:
(a) Self-employed persons (i.e. persons who are in business on their own account and who are placed by an Employment Agency).
(b) Managed Service contracts (i.e. persons who work under the supervision and direction of the Agency which employs them - not under the supervision and direction of the company where they work).
(c) Placement Services (i.e. where the employment agency introduces a person to an employer for a directly employed position that is paid by the employer. Upon placement with the employer, there is no further contractual relationship between the individual and the employment agency).
2. The Obligations on Agencies and Hirers
The Act requires enhanced communication between Agencies and Hirers.
An Agency supplying Temporary Agency Workers to a Hirer/End User will need to ensure that the correct pay and basic working conditions are applied to an Agency Worker to ensure that they are treated as if they had been directly recruited to the same job. As is currently the case, the Agency remains the employer of an Agency worker and so the liability rests with the Agency.
A Hirer who hires Agency Workers through an Agency should provide the Agency with sufficient up-to-date information on basic pay and employment conditions so that the Agency, as employer, can satisfy itself that an Agency Worker is getting equal treatment, as if they had been recruited directly to the same job. The Hirer/End User will be responsible for ensuring that all Temporary Agency Workers can access collective facilities and amenities and access information on job vacancies.
3. What is meant by basic working & employment conditions and what is included in “Pay”
Equal treatment relates to pay and basic working conditions for Agency Workers which would be received if they were directly recruited to the same job by the Hirer/End User.
Equal treatment in this context extends to the following range of issues:
a) Pay, which is defined as;
- Basic pay
- Shift premium
- Piece rates
- Overtime premium
- Unsocial hours premium
- Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee
b) Working time
c) Rest periods
d) Rest breaks
e) Night work
f) Annual leave
g) Public holidays
h) Access to collective facilities and amenities (e.g. canteen, childcare and transport facilities)
i) Access to information on vacancies in the Hirer Company.
An Agency worker is entitled to equal treatment on each of these conditions of employment for the duration of his or her assignment. The Act also states what is excluded from the definition of pay. This is essentially everything that is not included above, as the above is an exhaustive list. For example, the following elements of a possible remuneration packages are excluded from the definition of pay in the Act:
(a) Occupational Social Security schemes
(b) Financial participation schemes
(c) Sick pay schemes
(d) Pensions
4. Guidance on the Swedish Derogation, or payment in-between assignments
The Swedish Derogation is an exemption in the Act whereby the Temporary Work Agency elects to engage the Agency Worker on a full time contract of employment and pay the Agency Worker a wage in between assignments. By doing so, the Agency Worker will receive a basic wage consistently and when on assignment they do not have to be paid the full rate of a comparable employee. Instead they would receive 50% of the Comparable Employee rate or the National Minimum Wage, whichever is more.
This model would be particularly beneficial to End Users as it is a way of engaging Agency Workers on rates lower than Comparable Employees.
5. Redress options for Agency Workers
The guidance notes provide information in relation to redress options for Agency Workers under the Act and to whom they should apply if they believe they are not receiving equal treatment in relation to their basic working and employment conditions.
We have provided a brief outline of the guidance notes which are available from the Department of Enterprise Trade and Innovation, however a full FAQ for Agency Workers is available by contacting our Advice Service on 01 855 5050
