By Michelle O’Riordan, Solicitor, Employment and Pensions Unit
Agency regulation and the rights of temporary agency workers have for some time now been in need of overhaul. Significant legislative changes are proposed. These changes will modernise the licensing regime of employment agencies and fundamentally alter the legal entitlements of temporary agency workers.
Employment Agency Regulation Bill 2009
Currently, employment agencies in Ireland are regulated by the Employment Agency Act 1971. The Employment Agency Regulation Bill 2009 (the “Bill”) proposes to replace the 1971 Act and will increase the regulation of employment agencies.
The key features of the Bill are as follows:
- It will be obligatory for employment agencies established in Ireland to be licensed in Ireland.
- Licences will be granted by the Minister for Enterprise, Trade and Employment.
- It will be an offence for an employment agency to carry on its business in the State if it is not licensed under the new regime.
- It will also be necessary for employment agencies based outside Ireland and offering a service in Ireland to have the requisite licence unless they are already licensed in another European Economic Area (EEA) country.
- The Bill sets out a code of practice to set standards which employment agencies must follow.
- A licence may be revoked for certain stated reasons.
- The Bill will make it possible to enforce decisions of Rights Commissioners, the Labour Court and the Employment Appeals Tribunal in relation to agency workers in other EEA countries.
- The Bill provides for prosecutions of employment agencies in absentia in certain circumstances for offences under employment legislation.
Temporary Agency Workers Directive
The second significant development in this area is the Temporary Agency Workers Directive 2008/104/EC which must be implemented in Ireland by 5th December 2011. The Employment Agency Regulation Bill 2009 includes provisions to implement this Directive.
The Directive arose out of concerns at EU level that there were considerable differences in the legal protections available to temporary agency workers across the EU. Temporary agency workers covered by the Directive are workers who are registered with an employment agency and who are placed in end user businesses by that agency to work on a temporary basis. Difficulties often arise in practice when trying to establish the identity of the temporary agency worker’s employer: the agency or the end user business. Agency workers’ rights can also be affected by their temporary status. The Directive aims to provide clarity to these issues and has two stated aims, as follows:-
- to ensure the principle of equal treatment for temporary agency workers; and
- to recognise temporary work agencies as employers.
The Directive provides for equal treatment from the first day of placement for temporary agency workers compared to permanent workers in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave). Temporary agency workers must also have equal access to collective facilities such as childcare and must be informed of permanent employment opportunities. The Directive also provides for better access for temporary agency workers to training, both when working on an assignment, and in between assignments.
The fundamental principle underpinning the Directive is that the basic working and employment conditions of temporary agency workers will be at least those which would apply if they had been recruited directly by the user undertaking to do the same job. However, Member States may provide an exception allowing differences in pay and conditions, after consultation with the social partners, in certain circumstances, where, for example, the temporary agency worker has a permanent contract of employment with an employment agency and continues to be paid in the time between assignments.
The Bill is currently proceeding through the legislative process in the Oireachtas and will have to proceed to enactment and commencement prior to 5th December 2011 to be in compliance with EU law. Consequently, there will be significant developments in the area of agency regulation and temporary agency workers’ rights in the coming months. Employers, human resource managers and employment agencies should watch these developments carefully.
For more information on the proposed agency laws contact our Employment and Pensions Unit.
Employment agencies will need to be licensed under new laws which are expected to be enacted before 5th December 2011.
Employment agencies will then have to follow a new code of practice.
Temporary agency workers will be given rights to equal treatment as compared to permanent workers under the new laws.