Introduction
This article is a follow on from our May 2012 e-zine 'Agency Directive Update' which introduced legislation to protect agency workers namely the Protection of Employees (Temporary Agency Work) Act, 2012 (the "2012 Act"). Essentially, the 2012 Act entitles agency workers to the same "basic working and employment conditions" as employees directly hired by the hirer.
The Department of Jobs, Enterprise and Innovation has since published, on 31 August, 2012, a 'Guidance' document on the 2012 Act. The purpose of the Guidance is to assist agency workers, hirers of agency workers, and employment agencies to understand better the provisions of the 2012 Act.
The 2012 Act does not apply to the following categories of persons:
- Persons who work as independent contractors, are in business on their own account and are placed by an employment agency, where the hirer is a client or customer.
- Placement Services i.e. where the employment agency introduces a person to an employer for direct employment that is paid by the employer.
- Managed Service Contracts i.e. persons who work under the supervision and direction of the company which employs them and not under the supervision and direction of the company where they work.
Collective Facilities
Section 14 of the 2012 Act provides that a hirer shall, in relation to collective facilities and amenities at work, treat an agency worker no less favourably than an employee of the hirer unless there are objective grounds to justify any less favourable treatment.
The Guidance provides that objective justification cannot be based on economic considerations, such as cost. However, practical and organisational considerations could be factors amounting to objective justification.
The Guidance also provides that, even where there is basis for objective justification, hirers should consider whether it is feasible to offer agency workers access to facilities on a partial basis, rather than excluding them all together. The Guidance expands on what might be considered "collective facilities and amenities". In addition to canteen (or other similar facilities), childcare facilities and transport services as provided for in the 2012 Act, the Guidance includes the following examples (which may be on-site or off-site):
- Toilet/shower facilities;
- Staff common room/kitchen facilities;
- Food and drinks machines; and
- Car parking.
The Guidance also provides that transport services might include, for example, local pick-up and drop-off services or transport between sites but does not extend to, for example, benefit-in-kind type entitlements or contributions towards company cars.
Furthermore, the entitlement does not extend to other off-site facilities or benefits-in-kind which the hirer might provide as part of a benefit package to reward long term service and loyalty, such as subsidised access to an off-site gym.
Provision of Information
Section 15 of the 2012 Act provides that the hirer shall provide the agency with all such information in the possession of the hirer, which the agency might reasonably require, to enable the agency to comply with its obligations under the 2012 Act.
The Guidance expands on this and provides that:
- The hirer must provide the agency with up-to-date information on terms and conditions of employment; and
- The hirer must inform the employment agency of the correct rate of pay, annual leave entitlements and any other payment arrangements or allowances that an agency worker is entitled to under the 2012 Act.
Definition of Pay
Pay is defined in Section 2 of the 2012 Act as basic pay and any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours and Sunday work. The Guidance expands on each element included in the definition of pay as follows:
- Shift work - where a direct employee in the same or similar job would get paid a shift work premium, then the agency worker is entitled to be paid this premium at the same rate;
- Piece work - while the term "piece work" is more traditionally linked with the manufacturing sector, it applies in a wider context to output performance bonuses, commission linked to sales, output or production targets etc;
- Overtime - where a direct employee in the same or similar job would get paid overtime rates, then the agency worker is also entitled to be paid overtime at the same rate under the same terms and conditions;
- Unsocial hours worked - where a direct employee in the same or similar job would get paid a premium for working unsocial hours, the agency worker is also entitled to be paid for working unsocial hours at the same rate;
- Hours worked on a Sunday – where a direct employee in the same or a similar job is paid a Sunday premium, the agency worker who also works on a Sunday is entitled to be paid the same premium.
Pay does not include:
- Sick pay;
- Payments under any pension scheme or arrangement;
- Financial participation schemes; or
- Occupational social security schemes.
The Guidance confirms that the exclusion of these elements in the 2012 Act, does not prohibit an employer from providing benefits in the nature of pay in excess of the basic terms to agency workers should the employer so wish.
Establishing the Rate of Pay
The 2012 Act does not prescribe the rate of pay other than to require that the rate for agency workers be the same as if he/she was employed directly by the hirer to do the same or similar job. However, the Guidance provides that regard must be had to the following in establishing the rate of pay:
- Established pay scales;
- Collective agreements; and
- Terms and conditions of employment.
Annual Leave Entitlements
Annual leave is included in the definition of "basic working and employment conditions". The Guidance confirms that where a direct employee is entitled to more than the statutory minimum annual leave, the agency worker is entitled to the same level of leave, pro-rated in the case of an agency worker who is on assignment for only part of the annual leave year.
Access to Information on Job Vacancies
Section 11 of the 2012 Act provides that a hirer, when informing his employees of any vacant position, must also inform any agency workers of the vacancy for the purpose of enabling the agency worker to apply for the position also. The Guidance provides that hirers can choose how they wish to publicise such vacancies but that the agency worker should know when and where to access the relevant information.
Conclusion
It is advisable that hirers and agencies be familiar with the contents of the 2012 Act and the Guidance and work closely with each other to ensure compliance.
While the Guidance is helpful to hirers, agencies, agency workers and practitioners alike, it remains to be seen how the provisions of the 2012 Act will be interpreted by the employment law fora.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
