An agency worker is defined under section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 as “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.”
Agency workers v contractors
Confusion may sometimes arise as to whether a worker is an agency worker or a contractor. In order to correctly determine a worker’s employment status, it should be confirmed that:
- The worker has been placed by an employment agency which is duly licensed by the Workplace Relations Commission,
- The hiring organisation will supervise the work being carried out, and
- The hiring organisation takes responsibility for the work being carried out.
None of the above will apply to the engagement of a self-employed contractor.
Contracts regulating the employment of agency workers
Once it is established that it the worker is engaged through an agency, there are two principal types of agency worker contract between the employee and the licensed agency.
The standard agency contract
A fixed or specific purpose contract will outline the details, term and the purpose of the contract. The contract will specify that there will be no payment between assignments.
A standard agency contract affords the employee the right to equal treatment on a variety of specified pay and working conditions set out below:
- Pay
- Working time
- Rest periods
- Rest periods during the working day
- Night work
- Overtime
- Annual Leave
- Public holidays
- Access to collective facilities and amenities
- Access to information on vacancies in the hiring company
Agency workers must receive the same treatment that comparable employees at the hiring organisation receive in terms of the working conditions set out above. The above list is exhaustive. Any other terms and working conditions which permanent employees receive outside of this list do not have to be offered to agency workers.
The Swedish derogation contract
This is a permanent contract between the agency and the agency worker that includes an opt-out clause in relation to receiving equal pay. The opt-out clause in Swedish derogation contracts excludes the right to receive equal treatment in terms of pay but does not affect any other grounds.
In exchange for giving up the right to equal treatment regarding pay, the employee is entitled to receive a minimum payment between assignments. This payment must not be less than the national minimum wage (Registered Employment Agreements no longer apply).
The payment must be equal to not less than half of the pay to which the agency worker is entitled in respect of his or her most recent assignment. Before entering the contract, the worker must be notified in writing that equal treatment in terms of pay does not apply to the contract.
Hiring organisation risks
A hiring organisation that recruits a worker through a licensed employment agency remains liable for any claims taken by agency workers under the Unfair Dismissals Acts 1977 – 2015 or the Safety, Health & Welfare at Work Act, 2005 (as amended).
The agency and/or the hiring organisation may be liable for claims taken under the Employment Equality Acts 1998 – 2015, depending on which entity committed the discriminatory act and what type of claim has been taken. Both the agency and hiring organisation may be liable if a discrimination claim is taken relating to access to employment, access to training or promotion and classification of posts.
For more information on where liability falls in relation to claims by agency workers, please see our previous post on the topic by clicking
here.
To learn more about how to spot risks associated with taking on agency workers, please call the Peninsula 24-hour advice line on 0818 923 923 to speak with an adviser
