What Are The Rights Of Agency Workers From 5 December 2011?

02 December 2011

The deadline for the transposition (by putting domestic legislation in place) of the EU Directive on Temporary Agency Work (Directive 2008/104/EC) (the Directive) is Monday 5 December 2011. The main aim of the Directive is to ensure equal treatment in relation to basic working and employment conditions[1] between temporary agency workers and workers employed directly by the organisation where the agency worker is placed (the end user).

So what happens on Monday 5 December 2011?
As of today’s date (2 December 2011), the Irish government has not yet published transposing legislation. This is not all that unusual and indeed it was the case with the fixed term workers legislation. It does, however, mean that the State may be subject to potential infringement proceedings leading to financial penalties for late implementation.

Of more immediate concern, however, is the fact that agency workers in the public sector may be in a position to rely directly on the provisions of the Directive to enforce certain rights against their employers from Monday 5 December.  Contrary to what has been reported in the media, in order to benefit from the Directive, employees in the public sector would have to assert their rights under the Directive before a third party, such as a court or tribunal, and it remains to be seen if the provisions will be held to have direct effect.

It has been reported widely that the provisions of the Directive can also be relied on by agency workers in the private sector. In the absence of the transposing legislation, this is not the case.
The Directive allows for a number of derogations or exceptions in relation to the protections provided to agency workers, including the setting of a qualifying period for equal treatment. In the U.K., the right to equal treatment does not kick in until the agency worker has been engaged by the end user for 12 weeks. This derogation, however, can only be put in place with the agreement of the Social Partners. Talks between the Social Partners in this respect were said to have broken down late this week.

In terms of any derogation, the EU Commission has confirmed that if a Member State misses the 5 December deadline for implementing the Directive into national law, this does not prevent the Social Partners reaching an agreement on the qualifying period after 5 December, provided that this Social Partner agreement is in place before the transposition of the national legislation.

The Minister for Jobs, Enterprise and Innovation, Richard Bruton, has indicated that he intends to bring legislation to Cabinet before Christmas to transpose the Directive into Irish law. Mr. Bruton yesterday confirmed that the domestic legislation is “being finalised in light of the conclusion - without agreement - of discussions between Social Partners on the possibility of agreeing a derogation”.  Helpfully, Minister Bruton has confirmed that the definition of pay in the legislation will be limited to the following components: basic pay, shift premium, piece rates, overtime premium, unsocial hours premium and Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee. This is an exhaustive list and other possible elements of remuneration will not be included in the definition of pay for the purpose of equal treatment in the Bill.

[1] This includes pay, working time, overtime, breaks, rest periods, night work, holidays and public holidays.

The contents of this publication are to assist access to information and do not constitute legal or other advice.  Readers should obtain their own legal and other advice as required. © Copyright Mason Hayes & Curran 2011. All rights reserved.

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