Agency workers

The Act states agency workers’ entitlements as follows:   

i)         Basic Working and Employment Conditions: 

Agency workers have the right, from day one of employment, to be treated no less favourably in terms of basic working and employment conditions than if they had been directly recruited by the Hirer to do the same or similar work. 

ii)       Access to Collective Facilities and Amenities: 

Agency workers have the right to be treated no less favourably than directly hired employees with regard to access to collective facilities and amenities such as canteen or other facilities, child care facilities and transport services, unless there is objective justification for treating the agency worker less favourably. 

iii)      Access to Employment by the Hirer: 

Agency workers have the right to be informed of vacant positions arising within the Hirer. The Act provides, that when a Hirer is informing its employees of any vacant position with the Hirer, it must also inform any agency worker assigned to the Hirer at time of the vacancy in order to enable the agency worker to apply for the position. 

The Act applies to agency workers who are employed by an employment agency under a contract of employment and assigned to work temporarily for and under the direction and supervision of a hiring organisation, the ‘Hirer’.  

The Act defines pay as follows: 

(a)     Basic pay, and 

(b)     Any pay in excess of basic pay in respect of - 
  

(i)                   Shift premium; 

(ii)                  Piece work; 

(iii)                 Overtime; 

(iv)                 Unsocial hours worked; 

(v)                  Hours worked on a Sunday. 

The Act defines basic working and employment conditions as: 

• Pay; 
• Working time; 
• Rest periods; 
• Rest breaks; 
• Night work; 
• Annual leave; 
• Public holidays 

For the purposes of the legislation, the employment agency is the employer of an agency worker. 

 Agency workers’ entitlement to the same pay has retrospective effect to 5 December 2011.   

Entitlement to the other basic working and employment conditions is effective only from 16th  May 2012.  

In accordance with the EU legal principle of ‘direct effect’, the directive applies to public sector organisations.  It provides that where a Member State fails to implement a directive within the time limit set down the Directive is deemed to have been implemented into that Member State’s law from the implementation date.  This means that public sector agency workers can rely on the Directive from 5th December 2011.  For example, where public sector agency workers become entitled to increased annual leave entitlements they do so from the 5th December 2011, even though the legislation provides that such an entitlement is effective only from 16th May 2012. 

The Organisation of Working Time Act, 1997 provides statutory minimum entitlements for all employees to holidays and public holidays (except members of An Garda Siochana and Defence Forces).  

Under the legislation you are entitled to the same annual leave entitlements as directly recruited employees.  

All employees, regardless of status or service, qualify for paid holidays. In the case of agency workers, the party who pays the wages is the employer and is responsible for providing the holidays/public holiday entitlement. 

Depending on time worked, holiday entitlements should be calculated by one of the following methods. 

If you work at least 1,365 hours in a leave year you are entitled to: 

• four working weeks (unless it is a leave year in which you change employment) 

If you work less than 1,365 hours in a year you are entitled to: 

• one third of a working week for each calendar month in which you work at least 117 hours; or  
• 8% of the hours you work in a leave year (subject to a maximum of four working weeks) 

The Act does apply to permanent agency workers  

The Act provides that where an agency worker is employed under a 'permanent contract' with the Agency and is paid between assignments, the principle of equal treatment applies to all basic working and employment conditions except for pay. 

There are several conditions which must be met before equal treatment in respect of pay does not apply, namely: 

• The agency worker must be an employee of the agency; 
• The agency worker must have a permanent contract of employment with the agency; 
• The contract must have been given to the agency worker before the start of the first assignment; and 
• The agency must pay the agency worker between assignments at the rate of no less than half of the pay to which he/she was entitled in respect of his/her most recent assignment and no less than the minimum wage. 

Under the legislation agency workers will accumulate service for incremental pay purposes . They also accumulate other entitlements provided for under employment legislation. 

The Act provides that agency workers, or a trade union representative on their behalf, can make complaints in relation to any  alleged contravention of their rights under the Act to the Adjudication Service of the WRC. This complaint must be made within six months of the date of the alleged breach (or 12 months if the worker can show reasonable cause for the delay).  The Adjudication Officer can decide one or more of the following: 

• declare that the complaint was well founded, 
• require the employer to take a specified course of action including re-instatement or re-engagement of the employee, or 
• require the employer to pay to the employee such amount of compensation as is just and equitable having regard to all the circumstances up to a maximum of two years remuneration. 

The employment agency has responsibility for ensuring that equal treatment applies to agency workers. However, this is dependent on the agency being provided with the necessary information by the Hirer. 

The Hirer is responsible for providing access to collective facilities and/or access to information on job vacancies that arise.