News and Insights
Important Employment Law Changes Proposed
Author(s): Paul Glenfield, Bryan Dunne, John Dunne,
Practice Area Group: Employment, Pensions and Benefits,
Date: 03.01.2012
The Protection of Employees (Temporary Agency Work) Bill 2011 was recently published by the Minister. We have reviewed the Bill and have summarised some of the main points below. The Bill states that “pay” is defined as basic pay as well as any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours and Sunday work. The basic working and employment conditions protected by the Bill expressly exclude sick pay, payments under a pension scheme or other occupational social security schemes.
Some important points raised in the Bill are:
- the Bill provides that, subject to any collective agreement (see below), the basic working and employment conditions (specifically, pay, working time, rest periods, rest breaks, night work, annual leave and public holidays) to which an agency worker is entitled shall be the same as a comparable employee (or, where is no comparable employee for the time being, as those to which a comparable employee would have been entitled);
- albeit that the Bill is intended to have retrospective effect, the retrospective provisions are not intended to apply to any provisions that create offences;
- for the purposes of the Bill, the person who is liable to pay the wages of an individual is deemed to be that individual’s employer;
- agency workers who are employed by an employment agency under a permanent contract of employment are excluded, provided that they are paid by the agency between engagements at a rate of no less than half of the pay to which they were entitled in respect of their most recent assignment;
- a collective agreement may be entered into, in order to provide for conditions of employment that deviate from the basic conditions envisaged by the Act, provided they are balanced to ensure the overall protection of agency workers, which may be approved by the Labour Court;
- third party hirers must inform agency workers of any vacant positions about which they are also providing information to a comparable employee;
- it is an offence for an employment agency to charge individuals for having effected the introduction of that individual to another person for the purpose of his/her obtaining employment;
- in respect of collective facilities and amenities (including canteen facilities, child care and transport), agency workers must only be treated no less favourably (rather than the same) as comparable employees, and this obligation does not apply where there are objective grounds justifying less favourable treatment;
- where an agency worker brings a claim against an agency for a breach of the Bill, the third party hirer must indemnify the agency in respect of any loss that is attributable to a failure by the hirer to provide the agency with such information as it required in order to comply with the Bill;
- in a TUPE situation, for the purposes of Regulation 8, the transferor and transferee must include certain information regarding agency workers. Other legislation such as the EC (Cross-Border Mergers) Regulations 2008 are amended similarly; and
- maximum liability is two years remuneration and the usual time limits apply.
We expect the Bill will become law early in the New Year and we will update on this in due course.
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