Ireland: temporary agency work and collective bargaining in the EU

  • Observatory: EurWORK
  • Topic:
  • Published on: 18 Diciembre 2008


Disclaimer: This information is made available as a service to the public but has not been edited or approved by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

This contribution examines the issue of temporary agency work (TAW) and collective bargaining in Ireland as of May 2008. It is clear that trade unions and employers in Ireland hold contrasting views on the extent and outcomes of TAW. Unions are seeking equal treatment rights for agency workers with permanent comparators, in line with the stalled EU Directive. Employer organisations are opposed to agency regulations that, from their perspective, would place an undue burden on business.

Section 1. Definitions

1) In your country, is there a statutory definition of:

a) temporary agency work?b) agency worker?c) user enterprise?

If yes, please give definitions.

Yes, but the legal situation remains somewhat unclear. Greater clarity on the definition of who is the employer of an agency employee is to be given in a new code of practice (see section 2(1) below).

Under Irish employment law, an employee is said to be temporary if his/her position is not permanent, i.e. employment law is based on a temporary or defined period. This situation can occur when an employee is recruited on the basis of a fixed term contract; when employment is based on the duration of task; when employment is seasonal or casual; when the employee is on probation; and when the employee is working under the auspices of an employment agency.

Traditionally, the Irish legislature has deemed the agency worker to be the employee of either the employment agency or of the user undertaking, as the case may be. For the purpose of the majority of individual employment laws, it is the party responsible for paying the temporary agency worker's wages who is deemed to be the employer (usually the agency).

However, in the case of Ireland’s Unfair Dismissals Acts 1977-2007, the end user is always deemed to be the employer. Under section 13 of the Unfair Dismissals Acts, an agency worker is defined as an employee of the third party (the user employer) whether or not the third party is a party to the contract and whether or not the third party pays the wages of the worker in respect of the work or service. This extended protection under the unfair dismissals legislation to agency workers. The Labour Court has tended to use the definition contained in the Unfair Dismissals Acts in its rulings on temporary agency workers.

In 2004, the Labour Court issued a landmark binding determination (PTW/DET042), on the status of agency workers in Ireland. In ruling on the employment status of a part-time nurse working for drinks firm Diageo - but recruited through an agency – the Labour Court attempted to address grey areas in the law relating to agency workers, by clarifying whether the claimant was deemed to be an employee of the recruitment agency or Diageo - judging it was the latter. As well as judging that the part-time nurse was employed by Diageo, not the employment agency, the Court also ruled in her favour in concluding that she was treated less favourably than a comparable full-time nurse in not being paid whilst on sick leave and in having her hours of work reduced.

2) Is there a collectively agreed definition of:

a) temporary agency work?b) agency worker?c) user enterprise?

If yes, please give details (e.g. how and where defined).

No. And, as noted above, the issue of whether the employer is deemed to be the agency or the user who contracts that agency remains something of a grey area. Unions are calling for more clarity to be introduced under new temporary agency regulations.

3) In your country, would you describe TAW as a sector in its own right?

No. TAW is not a sector in its own right in Ireland. Rather, TAW is seen more as a supplier of services across a range of sectors.

Section 2. Regulatory framework

1) Have there been any changes in the law concerning TAW since 2004?

a) Yes b) No

Yes. The Government is committed under Ireland’s current national agreement, Towards 2016, to introducing a new Employment Agencies Regulation Bill, which will regulate the activities of employment agencies. The legislation will replace the existing Employment Agencies Act 1971. The new law will implement a ‘Monitoring and Advisory Committee’ overseeing and regulating the operation of employment agencies. The social partners and the National Recruitment Federation (which represents many agencies) will be involved with this Monitoring Committee. Further, a new statutory code of practice will govern standards of behaviour expected of agencies. As a statutory code, overseas employment agencies will also be subject to compliance with its terms. Granting of licenses to agencies will be conditional on compliance with the statutory code.

The Employment Agencies Regulations will:

  • require an employment agency to hold a licence and make it an offence to use an unlicensed agency in Ireland;
  • provide that the terms of Registered Employment Agreements (REA’s), Employment Regulation Orders (EROs), and statutory terms, apply to agency workers and posted workers in the relevant employments;
  • provide clarity as necessary in relation to who is the employer of agency and posted workers for the purposes of Employment Rights Legislation; and
  • for the purposes of enforcement, seek to require the maximum presence in Ireland of such agencies for the purpose of record keeping on pay and other employment related matters to facilitate compliance and enforcement, to the extent consistent with the EU Treaties.

The statutory code of practice will cover standards of behaviour for employment agencies, including:

  • recruitment and placement practices;
  • restrictions on the handling of personal information;
  • advertising practices – including a prohibition on trawling for CVs;
  • clarity in relation to travel expenses;
  • verification of qualifications;
  • provision of information in the language of the job applicant;
  • provision of information together with terms and conditions in a single document;
  • prohibition on the reimbursement of the employer fee by the jobseeker.

As noted above, compliance with the code of practice will be a condition of licensing. The new legislation will also provide for effective monitoring, investigation of complaints and the provision of appropriate redress mechanisms. The legislation will continue to prohibit the charging of fees by agencies to prospective employees.

The Employment Agencies Regulation Bill is reported to be more or less finalized and was already supposed to have been enacted in 2007. However, there has been a delay in its introduction, partly due to the fact that in recent months trade unions have made a new demand under Ireland’s social partnership process for equal treatment rights for agency workers with permanent comparators in relation to pay and terms and conditions of employment. This demand for equal treatment rights was not originally on the negotiating agenda during the last phase of Towards 2016, but unions have now made it a ‘deal breaker’ for the next phase of Towards 2016, with formal national talks having commenced in April 2008.

The Irish Government has faced mounting pressure on the equal treatment issue from unions and opposition politicians; the upshot being that it indicated it will be on the social partner negotiating agenda. But the Government, and employers, insist that the six-week qualification period stipulated in the stalled EU Directive, and demanded by Irish unions, is far too short. The Government and employers are likely to insist on a six month to one year qualification period, as well as various derogations/exclusions.

It looks like the two issues of regulation of agencies and equal treatment rights for agency workers will ‘run in parallel’ in national talks in 2008. And it now seems likely that if consensus agreement is reached on equal treatment in national talks, then any changes would then be incorporated into the Employment Agencies Regulation Bill.

Unions in Ireland face something of a dilemma on equal treatment. In potentially expending substantial energy on equal treatment rights in national talks, the unions could see this delivered anyway by Europe later in 2008. There is an expectation in European circles that the French Presidency, which commences on July 1, might be keen to finalize an EU agency workers directive.

2) How is TAW regulated in your country?

a) Is there a legal framework specifically for TAW; and/or is it covered by general labour law (including case law/ jurisprudence)?

Prior to the legal developments cited in 1) above, aside from the outdated 1971 Employment Agencies Act, TAW was covered only by general labour law regulating Irish workers as a generality. However, the enactment of new Employment Agencies Regulation law, and any legal measures on equal treatment, will usher in legislation specifically relating to TAW.

b) What is the role, if any, of collective labour agreements and self-regulation?

Ireland’s national level social partnership agreements reflect the negotiating agenda of Government, unions and employers on agency workers. In particular, the contents of the Employment Agencies Regulations Bill reflect national tri-partite negotiations between Government and social partners. Also, any subsequent legal changes on equal treatment rights will reflect the outcome of further negotiations between Government and social partners under the Towards 2016 national agreement.

In terms of self-regulation, the National Recruitment Federation (NRF), which is the main employers association representing TWA in Ireland, has its own Code of Conduct which affiliated agencies have to abide by. It is a condition of membership that the individual, agency or company, is properly licensed to operate as an employment agency within the terms of the Employment Agency Act 1971 and any amendments thereto. The Code of Conduct also provides that:

(a) Applicants must be treated in a courteous and dignified manner at all times. Their right to privacy must be respected including their right to be interviewed in a private area in accordance with health & safety regulations. Regard must be had to the Employment Equality Acts 1977 and 1998.

(b) All applicants must be interviewed by the agency prior to be being put forward to the client for interview.

(c) Applicants must be given full details of any job for which the agency intends to recommend them and permission sought from the applicant. An applicant's permission must be sought and obtained before his or her details are revealed to an employer. The agency should also determine whether or not the applicant has been approached by another agency about the same job.

(d) Applicants must be kept informed of the progress of their application.

(e) References must not be sought without an applicant's consent.

(f) Members must protect the confidentiality of any information obtained on applicants business in the course of a recruitment assignment and use such information only for the purpose of staff selection and recruitment. The agency must have regard to the provisions of the Data Protection Act 1988.

However, the National Recruitment Federation has refused to engage in negotiations with unions on collective bargaining arrangements for agency workers.

3) What is regulated in these provisions? In particular, does it cover:

a) use of agency work (e.g. length of assignment, sectoral bans, permitted reasons of use, number of agency workers per company, other)

Use of agency work will be governed by law and collective agreement. As of May 2008, the Government and the social partners were expected to negotiate issues around the use of agency workers in national-level talks; especially in relation to equal treatment rights (notably the time period after which agency workers could expect to enjoy the same rights as permanent comparators), and any derogations/exclusions from agency worker regulations, and so forth. The conclusion of the EU Directive would obviously have an impact.

b) the form of the contract (e.g.project, fixed-term, special contract, open ended, etc.)

No regulations

c) social security and social benefits

Governed by general legal provisions relating to social security benefits.

d) conditions to open a TAW agency (e.g. license or authorisation schemes, supervision by public authorities, financial requirements, or others - please specify)

Law and collective agreement. Conditions to open a TAW agency will be contained in Ireland’s Employment Agencies Regulation Bill (see above). In particular, a new statutory code of practice will stipulate the conditions agencies will have to fulfil if they are to be granted a license.

e) business activities/services delivered by TW agencies (e.g. prohibition to provide other services than TAW)? No regulations.

f) third-national companies or temporary agency workers (e.g. activities of foreign agencies)?

As in d) above. The new statutory code of practice will also regulate the activities of foreign agencies. Foreign agencies will have to comply to secure a license.

4) Do any regulations (by law and/or collective bargaining in the TAW sector) specify equal treatment rights for agency workers with permanent workers in the user enterprise concerning:

a) payb) trainingc) other terms or conditions of employment?

If yes, please give details.

Not yet, but as noted above equal treatment rights for agency workers in relation to pay and conditions of employment is on the negotiating agenda between the Government and social partners in the current round of national social partnership talks. Indeed, unions have made the issue a ‘deal breaker’.

5) Do TAW workers have the right to information, consultation and representation?

If yes, please specify the nature/basis.

In theory yes. In particular, TAW workers have rights to information and consultation under Ireland’s Employees (Provision of Information and Consultation) Act 2006. However, the rights under this Act are not automatic and have to be triggered by an application by at least 10% of a particular undertaking. In practice, because they are not members of the permanent workforce, and tend not to be unionized, TAW workers (particularly at the lower skill levels) would generally experience fewer rights to information, consultation and representation.

6) Is there a control/enforcement mechanism regarding any TAW regulation?

If yes,

Yes, and these control/enforcement mechanisms have been strengthened considerably, after the Government and social partners agreed under the Towards 2016 national agreement to the establishment of a new statutory body specifically for governing and enforcing employment rights, the National Employment Rights Authority (NERA). NERA is now up and running and was legally established under the Employment Rights Compliance Bill 2008. NERA has a tripartite advisory board to assist it.

a) is there a special labour inspectorate or a bi-partite body governing TAW?

Yes, the new NERA employs 90 labour inspectors with a remit to ensure employer compliance across the range of Ireland’s employment rights legislation. This represents a big increase on the original complement of 30 inspectors. In particular, part of the remit of NERA and its expanded labour inspectorate is to tackle alleged exploitation of migrant labour/agency employees. The Employment Rights Compliance Bill provides labour inspectors with stronger inspection and enforcement powers.

The new legislation specifies the statutory employment records to be kept by employers for all employees and the high penalties for failure to do so or for other breaches of employment law. Also, it provides for exchanges of information between different statutory enforcement authorities so as to facilitate Joint Investigations of employments suspected of contravening the law.

b) are there any sanctions/penalties for not respecting the regulations (whether stemming from law and/or collective agreements)?

Yes. The Employment Compliance Bill 2008 strengthens the powers of the Minister for Enterprise, Trade and Employment to initiate investigations and publish the outcomes in cases of public interest (along the lines of procedures for tax defaulters), and also provides for penalties of up to €250,000 and/or imprisonment. Employees may also receive compensation of up to two years salary.

7) Are there any procedures governing use of TAW and strike breaking?

In particular, can workers on strike be replaced by agency workers?

There are no specific procedures governing use of TAW and strike breaking. However, recent changes to the unfair dismissals legislation collectively agreed by the Government and social partners under the Towards 2016 national agreement provide greater protections against dismissal to workers on strike, as follows:

The Government amended Section 5 of the Unfair Dismissals Acts, 1977-2001, by the addition of the following provision to that Section:

‘Where in the case of a strike, other industrial action or lockout; none of those who took part in the strike or industrial action were re-engaged; or in the case of a lock out, none of those who were locked out were re-engaged, the Rights Commissioner, the Tribunal, or the Circuit Court, as the case may be, shall have regard in determining if a dismissal is an unfair dismissal:

  • (i) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer or employee in relation to the dismissal,
  • (ii) to the extent (if any) of the compliance or failure to comply by the employer or the employee with the procedure referred to in Section 14 (1) of this Act or with the provisions of any code of practice referred to in Section 7 (2) (d), and
  • (iii) whether the parties have adhered to any agreed grievance procedures operative in the employment in question at the time of the aforementioned strike or industrial action or lock out’.

Section 3. Social dialogue and collective bargaining

1) Is there any employers’ association(s) for TAW firms in your country?

If yes, please provide any data on membership (e.g. sectoral coverage of firms/workers)

Yes, founded in 1971, the National Recruitment Federation (NRF) is the main representative body for the Recruitment Industry in Ireland. It is a voluntary organisation set up to establish and maintain standards and codes of practice for the recruitment industry. Representing approximately 100 recruitment agencies throughout the country, NRF Members are expected to abide by what the NRF calls a strict Code of Conduct.

Membership of the NRF is granted only to organisations that are perceived to meet criteria of excellence (including adherence to the provisions of the Employment Agency Act 1971 and all other relevant Government legislation & amendments) and who agree to abide by the NRF Code of Conduct.

In addition, Ireland’s largest employer representative body, the Irish Business and Employers Confederation (IBEC), also represents the interests of agencies, notably during national social partnership talks.

2) Is there any union(s) specifically for agency workers?

If no, have any unions or confederations targeted the recruitment of agency workers? launched any campaigns around agency workers’ rights?

There are no unions in Ireland specifically representative of agency workers. However, in the last year or so, some unions have launched campaigns around agency worker rights. In particular, Ireland’s largest union, the Services Industrial Professional and Technical Union (SIPTU), launched a campaign on agency worker rights in late 2007. The aim of the SIPTU campaign is to boost awareness of what the union views as the growing exploitation of agency workers, both among union members, good employers, politicians and wider civil society. SIPTU is also concerned with organizing and recruiting agency workers.

Generally speaking, union leaders in Ireland are concerned that the spread of employment agencies has the potential to circumvent every piece of employment protection legislation. Unions fear that use of employment agencies and agency workers provides employers with a loophole to circumvent employment law; which is why they are so active in lobbing the Government for equal treatment rights for agency workers.

3) Collective bargaining levels

Is TAW governed by collective bargaining at:

a) intersectoral/ national level?

See above, TAW is governed by Ireland’s centralised social partnership agreements, involving the Government, employer representative body IBEC, and the Irish Congress of Trade Unions (ICTU).

b) the sectoral level for TAW?

Not generally, but Ireland’s national agreement Towards 2016 sets down sectoral collective bargaining rules regulating the use of TAW/outsourcing in the public sector (see 4) below).

c) company (ie. temporary agency firm) level?

Collective bargaining on TAW at company level is not very common, although there are some notable company-level agreements (see 4) below).

If yes, please provide details of the parties concerned.

4) Collective bargaining outcomes

Please provide examples and details of any recent/ significant collective agreements governing TAW at the levels referred to in question 3.

Collective bargaining at national level has already been discussed, and negotiations between Government and social partners relating to, in particular, equal treatment rights are ongoing.

As noted in 3b) above, there is little sectoral bargaining over TAW in Ireland. The main exception to this is that the national agreement, Towards 2016, sets down sectoral collective bargaining rules regulating the use of TAW/outsourcing in the public sector.

Within limits, a clause in Towards 2016 – ‘service delivery options’ – affords the Government and public service employers greater scope than hitherto to contract out public sector work to private sector companies and employment agencies, as follows:‘It is accepted that there can be situations where, without affecting the essential ethos of the public service, work can be carried out or services delivered more effectively or efficiently, or both, by the employment of temporary staff, contracting out of work to the private sector or outsourcing it to other public service bodies or a combination thereof.There is a variety of instances where it is recognised and accepted that this is already the case and these will continue. In exceptional situations involving temporary pressures or peaks, or in order to avoid excessive delays in the delivery of services, management may, at its discretion, have the work undertaken on this basis’.The public service clause emphasizes that collective agreement must be reached with public service unions through normal industrial relations mechanisms – i.e. collective bargaining. Where collective agreement cannot be reached, disputes can be referred to the various state dispute resolution institutions.

Finally, at company level, there are a few notable examples of agreements on TAW. In particular, an agreement on agency working concluded in 2007 at retailer Tesco’s new 600-worker distribution centre in Dublin is being seen by SIPTU as model for other employments with significant agency working. A key principle underlying the TAW deal is that agency workers have the same pay and conditions as direct Tesco workers with the same level of service. The second major element is that after 26 continuous weeks’ service, agency workers will have the right to enter an employment panel from which future direct Tesco workers will be recruited. The placing of agency workers on the employment panel after 26 weeks is subject to satisfactory performance during that period. Any issues that arise during this period are to be dealt with by the company on a fair and equitable basis, as would be the case for a direct Tesco employee. The employment panel is to be used to fill vacancies as they arise, and recruitment from the panel will be on a seniority basis, subject to the normal recruitment and performance criteria, such as satisfactory performance after entry onto the panel. Also, the deal stipulates that the level of agency workers is to remain at 10% or less of the workforce, apart from certain busy periods.

Some elements of the Tesco deal were also present in another TAW agreement concluded with SIPTU in the distribution sector in 2007, at Keelings. The Keelings deal includes measures to incorporate agency workers into the permanent workforce, along with changes to sick pay and absence policies. The issue of the allegedly excessive use of agency workers had been a key element behind a strike threat by the 350 workers at the centre earlier in 2007, but negotiations led to a deal on TAW. The deal provides that the company cannot use more than 15% agency staff, with the usage level to be measured jointly at quarterly intervals – including a review of leavers, joiners, vacancies, absence and holidays taken. Also, all agency staff who reach six months’ service will be reviewed and assessed for a new Resource Panel. New full-time operative positions will be filled from this panel as they arise, on the basis of seniority of service within the Panel.

5) Are there any examples of sector- or company-level collective agreements in other sectors that restrict, permit or otherwise regulate the use of TAW within their domain?

Covered in 4 above. In Ireland TAW is not viewed as a specific sector.

6) Please provide any data concerning:

a) trade union density for agency workers b) the coverage of collective bargaining within the sector.

Data on union density according to worker characteristics is contained in a survey published in 2005 conducted by the Economic and Social Research Institute (ESRI) and the National Centre for Partnership and Performance (NCPP) entitled: ‘The Changing Workplace: A Survey of Employees’ Views and Experiences. Over 5,000 employees completed the survey questionnaire across different sectors of the economy. The ESRI/NCPP survey indicates that union membership is significantly lower for employees on temporary/casual contracts (22%) compared to those on permanent contracts (40.8%).

No data on collective bargaining coverage.

Section 4. Employment and working conditions of TA workers

1) Please provide the most recent data (averages) on TAW employment

a) longevity of TAW employment, i.e. how long workers remain employed

- in the sector?

- with a particular agency?

b) duration of TAW placements, i.e. i.e. the length of assignment in a user company.

No data on longevity and duration of TAW employment.

2) Please provide any evidence from official, academic and social partner sources concerning:

a) the reasons for user companies’ usage of TAW, including any differences by sector, occupation, firm size etc.b) reasons for workers participation in the sector and levels of satisfaction, including any differences by age, sex, education etc.

Employer organisations and unions in Ireland hold contrasting views on TAW. Ireland’s largest union SIPTU has compiled a document of evidence relating to its campaign for agency worker rights. According to SIPTU, agency work is associated with appreciably poorer working conditions with a higher level of workplace accidents and health hazards. The SIPTU document remarks that traditionally, agency work was widely regarded in a reasonably benevolent manner as a source of temporary employment in between permanent jobs, study or other life choices. Typically this work was of a clerical, administrative or information technology nature. Indeed, in some circumstances, such as nursing, agencies may run a specialist service. The SIPTU document goes on to note that some of the long established agencies would have been regarded as well run, compliant with the law and providing a reasonable service – though with no guarantee that the workers they referred to a user company would be treated equally with that company’s directly employed workforce.

Until recently in most cases, SIPTU suggest, the use of agency workers would have been limited to particular circumstances – like covering for periods of unusually heavy demand or providing emergency cover for periods of prolonged absence. They would have generally been regarded as temporary additions to – rather than long-term replacements for – the directly employed workforce. But the union claims that in recent years there has been a clear shift in the way temporary agency workers are being utilised by end-user employers not just in Ireland but right across the EU. According to SIPTU, it is clear that in addition to the traditional areas of agency work, there has been a significant growth in other sectors, especially among general operative grades such as: construction, retail, distribution, transport and logistics, food processing, hotel and hospitality services. The major beneficiary of the arrangement is the user company, SIPTU suggests. Common to all of these sectors is a high labour element in the production process or service with the result that wage costs and labour flexibility are critical in determining profitability and the bottom line. However, SIPTU suggest, one of the most obvious effects of increasing the use of temporary agency workers, in an effort to improve that bottom line, is to

displace directly employed staff and to undermine standards of employment. Concern is growing among unions that the increasing tendency for employers to use temporary agency workers as a source of cheap and flexible labour will not only result in the exploitation of those workers, but will also undermine standards of employment achieved by the directly employed workforce.

Employer organisations hold a different view. According to Ireland’s main employer organisation, IBEC, TAW has proved to be a critical feature of the labour market and provides flexibility for both companies and workers.

Temporary agency workers are, and will remain, a small part of the labour force in Ireland, IBEC insist. TAW nevertheless fulfils a vital role of enabling companies to carry out work that they might otherwise not be able to do due to a lack of in-house resources or expertise. That is why agency workers are a familiar part of life in sectors such as ICT, financial services, food processing, construction, manufacturing, transport, tourism and catering. IBEC suggests TAW also contributes to improved business competitiveness by providing a flexible response to sudden changes in business conditions. This is particularly the case in Ireland, IBEC says, where there is a continuous, sophisticated use of temporary agencies for both the sourcing and recruiting of permanent staff as well as the provision of temporary cover. Companies based in Ireland use the flexibility and expertise available through agencies to supplement their other staffing policies. In contrast to many other Member States, IBEC remarks, this is a normal process of business which covers all levels and seniority of work and sectors. In Ireland it is common to see very highly skilled and experienced individuals, who are in significant demand, working through agencies, often by choice, in order to have total flexibility and independence, and to be in a position to demand significant remuneration.

At the same time, IBEC observes, agency work can also prove to be attractive to workers that might not otherwise be in a position to get a full time permanent role. In the Irish situation, IBEC suggest agency work is very attractive to individuals as a means of entry to the labour market to gain initial experience. This can include recent school-leavers or graduates who wish to gain some experience to help build their career and as a stepping stone to more permanent positions. The availability of agency work is often attractive to those returning to the labour market who may have been out of the workforce for a while or other EU nationals who want to assimilate in to the Irish labour market. Temporary agency work is also attractive to the parents of young children as a useful way of combining work and family lives by allowing them freedom of choice and flexibility about when they want to work.

In addition, Euro-CIETT national federations such as Ireland’s NRF dispute the negative link between TAW and working conditions raised by unions. First, it disputes the argument that TAW workers are more likely to be exposed to health and safety risks than their permanent colleagues – TAW workers work alongside their permanent counterparts, and the employment agency and end user client both have obligations to the TAW workers in relation to health and safety. The quality of life issue raised by unions is also disputed. According to Euro-CIETT, the TAW workers are not a separate cohort within the end user clients. Rather, they are, it claims, an integral part of the end user organisation and generally, but not always, have access to the end user clients training facilities. TAW work is more and more becoming a lifestyle choice.

There is limited independent research on the use of temporary agency work in Ireland. The major exception is a survey published in 2005 conducted by the Economic and Social Research Institute (ESRI) and the National Centre for Partnership and Performance (NCPP) entitled: ‘The Changing Workplace: A Survey of Employees’ Views and Experiences. The survey includes information on TAW and employee experience of working conditions. One of the findings is that employees with permanent contracts are significantly more satisfied with their jobs than those on casual, temporary or fixed-term contracts. Further, permanent employees are entrusted with more job autonomy and discretion over their work than non-permanent employees. Significantly, the survey concludes that work pressure and work stress is lower among those on non-permanent contracts. Permanent employees (50%) receive more employer sponsored job training than those on temporary contracts (37%). Permanent employees feel better informed and consulted by management than temporary/casual counterparts.

3) In practice, which rules and procedures may apply to temporary-agency workers in contrast to other workers in the user company?

Given the largely anecdotal nature of the evidence relating to TAW, Ireland’s Minister for Labour Affairs challenged the trade unions to come up with concrete practical evidence of differential treatment of agency employees. In relation to this, in April 2008 union leaders submitted practical examples to the Irish Parliament of what they see as differential treatment of agency workers with permanent workers. During this submission, union leaders insisted that exploitation of agency employees is not just anecdotal but real, and is no longer the exception but becoming the rule.

SIPTU gave an example in the distribution sector which, the official submitting the evidence claimed, ‘will serve to highlight accurately some of the main issues that arise for agency workers and those working alongside them’.

The distribution company referred to by SIPTU employs approximately 550 workers. The staff are made up by a combination of people who drive articulated trucks and those who prepare goods for distribution. SIPTU represent the main body of the workforce in the company concerned. ‘Traditionally, indigenous workers were employed in this sector on a permanent basis, while peaks and valleys in demand were dealt with by agreement with the employer concerned which allowed temporary workers to be employed. That is normal practice and there is nothing wrong with it’.

In the past two years, however, SIPTU said a change became evident with this distribution employer. ‘During one set of negotiations it became clear that there was a 30% density of agency workers. I inquired of the company why 30% of staff were agency workers. The argument made was not a substantive one and related to the difficulties encountered in recruiting people, how staff were not available when required and the lack of flexibility in recruitment. I then inquired what temporary staff were being paid. There was silence. Six managers - all men - were sitting around the table and only one of them was brave enough to say they were being paid €15 an hour. I inquired of the shop stewards sitting beside me what was the hourly rate for drivers. The reply was €18.50, with a bonus being paid for a long run’.

The SIPTU official said she then inquired why temporary staff were being paid €15 if the rate was €18.50. Subsequently, SIPTU said it discovered the employer in question ‘was not paying them €15 but €13.20, but only after they had worked for six months. While on probation, they earned €11.20. They received no overtime payments, shift premium, were not covered for sick pay and had no pension entitlements…. They had absolutely no entitlement to continuity of employment. If he did not like the look of them on the day they came in, he would ring the agency and say, ‘Get rid of him and give me someone else’. The majority were non-Irish nationals’.

The SIPTU submission goes on to state: ‘The sad part is that I can repeat many of these stories…. I was dealing with workers on a construction site who will be in dispute with their employer. The construction site is covered by a registered employment agreement, REA. The workers laying the pipes are not considered by the construction site employer to be general operatives covered by the REA. The only thing that stands between them and exploitation is the minimum rate of €8.65 an hour. Those employers were not concerned that the rate for the job was €18.50 or about the registered employment agreement. We are not talking about a few hundred people, but thousands of workers. We are talking about a growing phenomenon and an employer group that does not want to admit that this is happening nor that it is associated with it’.

Section 5. The extent and composition of TAW.

1) For 2004 and 2007, please state

a) the number of agency workers

In the first quarter of 2005, Ireland’s Central Statistics Office estimated that there were 27,000 temporary agency workers employed in the Republic, or around 2% of the total workforce. But SIPTU argues that this seems to be a significant underestimate, claiming that the number of agency workers has increased significantly since early 2005. According to SIPTU, it is difficult to secure accurate and up to-date figures from the agencies themselves.

The CSO is in the process of compiling new data on the extent and composition of TAW, which is not yet available.

b) total revenues of the TAW sector

The National Recruitment Federation estimates that the revenue/value of the agency/recruitment industry amounted to EUR1.6 billion in 2007

Please present consistent measures where possible, in order to estimate percentage change.

2) What proportion of the TAW workforce is currently

a) male/ female?b) full/part time?c) young (<c. 25) or older (>c. 50) workers?

No data on this. See above on forthcoming CSO data.

3) Has there been any changes to the TAW sector in terms of

a) concentration, i.e. proportion of employees or turnover accounted for by the largest firms?b) internationalisation, i.e. number/significance of multinational TAW firms?

No data on this.

4) What is your evaluation of the availability and quality of statistical data concerning TAW in your country?

At the moment, the 2005 CSO data appears to underestimate the extent of TAW – the question is to what extent? The issue may be clarified when the CSO publishes updated figures on TAW, which are expected in the near future. However, it is difficult to accurately quantify what tends to be a highly transient and fluid employment arrangement. Adding to the difficulty is the ambiguity over the identity of the employer: is it the agency or the user company?

Commentary by the NC

As of May 2008, the social partners were engaged in national-level social partnership negotiations, with unions framing equal treatment rights for agency employees as a ‘deal breaker’. Irish unions face something of a dilemma on equal treatment rights for agency workers, because they could expend a huge amount of energy on it in national talks, only to see it possibly delivered anyway by Europe in 2008/2009 – possibly by the French EU Presidency. However, there is significant pressure within the ranks of Irish unions for a resolution in the here and now, rather than waiting to see whether Europe does or does not deliver the Directive. In short, delivery from Europe is not guaranteed. The unions will look for the six-week qualification period before equal treatment rights kick-in that is stipulated in the stalled EU Directive, but employers, and the Irish Government, insist that six-weeks is too short.

IBEC opposition to conceding equal treatment rights is based on the perception that employers in Ireland are extremely concerned about the implications of the proposed EU directive, which it associates with what it sees as the highly regulated 'European' labour market model. IBEC argues that, as has been observed in Member States where stringent regulation of agency work was introduced, this is damaging to the business agility which is important for business development and investment. At the heart of social partnership, IBEC argue, consistent with the need to maintain a competitive economy, is the need for a more balanced approach to social measures, particularly in line with stated commitments on labour market flexibility in the context of the Lisbon Process.

Employers also have concerns about the administrative cost impact of the Directive. This arises in the context of the additional administration issues that may arise, if the Directive is adopted, in working out appropriate packages for individuals who are on short term assignments with the ‘end user’ and the perceived complications around the treatment of diverse elements of remuneration such as pension schemes, health schemes, share options, incentive plans, and so forth. Finally, IBEC believes that a number of companies are concerned that an indirect effect of the directive is that it could encourage ‘reverse pay parity’, with permanent workers seeking equal pay based on the higher rate for a temporary agency worker. This could result in spiralling wage costs for affected companies, IBEC suggest.

Tony Dobbins, IRN Publishing

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