Agency workers’ law passed without social partner negotiation
Legislation to provide equal treatment for temporary agency workers in Ireland has been passed into law, although the social partners, the Irish Business and Employers’ Confederation and the Irish Congress of Trade Unions, failed to meet the deadline for negotiating an agreement on how to implement the EU directive on the issue. However, their views on the legislation were taken into account after meetings with the Department of Enterprise, Jobs and Innovation.
The Protection of Employees (Temporary Agency Work) Act was signed into Irish law on 16 May 2012. This Act stems from the EU Directive 2008/104/EC (59Kb PDF) on temporary agency work, which sets out obligations for Member States to establish equal treatment for agency workers.
The Act provides for the same treatment for temporary agency staff under basic working and employment conditions as applies to employees who are recruited directly by the hirer. The Act was passed in the absence of a negotiated deal between the primary social partner bodies, the Irish Business and Employers’ Confederation (IBEC) and the Irish Congress of Trade Unions (Congress).
Key provisions of the Act
For the purposes of the Act, ‘basic working and employment conditions’ include:
- working time;
- rest periods;
- rest breaks during the working day;
- night work;
- annual leave or public holidays.
Pay is defined as:
- basic pay;
- shift work;
- piece work;
- unsocial hours worked;
- hours worked on a Sunday.
Matters such as occupational pension schemes, financial participation schemes, sick pay schemes, benefits in kind, bonus payments, maternity and adoptive leave pay, and redundancy payments are outside the remit of the Act.
Other provisions of the Act are outlined below.
- There is a duty on the part of the hirer to provide the employment agency with any information the agency might reasonably require to enable it to comply with its obligations.
- The employment agency is liable for failure to provide equal treatment in terms of basic working and employment conditions such as pay, while the hirer has liability for failure to provide access to collective facilities and/or access to information on vacancies.
- Agency workers can take claims to the Rights Commissioner which can then be appealed in the Irish Labour Court. The maximum financial penalty an employer can face for breaching the Act is two years’ remuneration.
Social partners’ input
According to the EU Directive, Ireland’s social partners had until 5 December 2011 to agree a deal to ensure the provisions of the directive were implemented into Irish law. This deadline expired without a social partner-negotiated deal, possibly due to a lack of impetus from both partners. IBEC, for the employers, had made it clear nothing but the issue of temporary agency work would be on the table, while Congress was reluctant to negotiate due to the absence of certain guarantees for unions.
As a compromise, the Department of Enterprise, Jobs and Innovation facilitated individual discussions with both IBEC and Congress.
Barriers to social partner input
The first stumbling block for the social partners was the proposed qualifying period of the protection offered by the draft bill.
The ‘day one’ clause of the directive, if left unchanged, would allow agency workers to have the protection of the Act from the first day of their relevant work assignment. This put Congress in a strong bargaining position to direct the focus to some issues that it was keen to progress. However, union sources indicated that Congress was reluctant to give away concessions without a watertight guarantee available on any particular issue.
IBEC was concerned that the Department of Enterprise, Jobs and Innovation had indicated even before the bill was published that its provisions would be effective retrospectively to 5 December 2011. Brendan McGinty, Director of Industrial Relations and Human Resources at IBEC, highlighted the potential danger of the ‘unknown liability’ this would create for hirers and employment agencies in respect of agency workers.
Both IBEC and Congress flagged up problems with comparators (comparisons between specific workers’ roles and rates of pay, for assessment purposes) and hypothetical comparators in the draft legislation, saying that they needed clarification. IBEC highlighted the potential lack of a set pay scale, while Congress pointed to the contradiction it perceived between the legislation’s scope of comparators and that featured in the EU Directive. Congress also stressed its concern over the legislation’s failure to provide anti-avoidance measures, and protection against abuse of the exemption rules.
In early May 2012, when the Department of Enterprise, Jobs and Innovation published the legislation, three significant changes had been made to it;
- the use of comparators was removed from the text;
- the retrospective functionality of the law was diluted to apply to pay only;
- an anti-avoidance measure was introduced.
The anti-avoidance measure ensured that agency workers who had a series of the same or similar work assignments with the same hirer would have these assignments treated as a single assignment, and only a gap of three months or more between assignments would break the link between them.
Although IBEC and ICTU did not negotiate with each other on the planned legislation, their respective consultation with the Department of Enterprise, Jobs and Innovation did allow for their input. The law still contains elements which are of concern to both sides, but it has been significantly improved.
Brian Sheehan, IRN Publishing