There has been an increase in the number of claims being submitted under the Temporary Agency Workers legislation, with the largest level of compensation to date being made recently by the Labour Court. The legislation provides that workers employed as agency workers should receive the same terms and conditions of employment as they would have been expected to get had they been employed directly by the end-user. This puts an onus on the agency to ensure that if they are providing workers they have all the relevant salary and wage information of the end-user to ensure they are not exposed to a potential claim.
Background
The case, Team Obair v Robert Costello (AWD134), revolved around an employee who was employed since March 2007 at a plant operated by Diageo Guinness Ireland Limited at St James Gate Dublin. The work in which he was engaged was historically undertaken by workers directly employed by that company. As a result of restructuring by Diageo Guinness Ireland Limited this work was contracted out to third party undertakings during the 1990s. The contracts for the provision of this service were awarded by way of tender. Various third parties were awarded the contract through this process in the intervening years.
The Company was contracted to provide agency workers to the original third party contractors and on each occasion on which the contract passed from one contractor to another the Company retained the business of providing agency workers to the incoming contractor under TUPE regulations.
The case surrounds the issue of equal terms and conditions as provided for under the Agency Workers legislation where an agency worker must receive the same terms they would have done had they been hired directly by the end user. In this case the employee was being paid €11.00 per hour, whereas the fulltime equivalents were getting €13.50 per hour. As a result it was argued that he was being paid less by dint of the fact he was an agency worker.
Determination
The tribunal found that had the employee been employed by the end-user as of 5th December 2011 they would have been given €18.50 per hour and so as a result the Tribunal ordered the employees pay be backdated to €18.50 per hour from 5th December 2011 to present.
This results in over €20,000 in compensation to the employee. This is only the fourth decision issued under the Protection of Employees (Temporary Agency Work) Act 2012 and involves the highest amount awarded under the Act to date.
As more and more cases come through the system it will be interesting to track how this develops as more test cases are heard. Employers should be aware of the liabilities imposed under the regulations and ensure that clear salary bandings and structures are in place with any agencies who provide workers as failure to do so could leave an employer liable to pay awards made.
For further reading on agency workers click here and here
