Agency entitlements

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 basic working and employment conditions as follows:              

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

The Act defines pay as follows: 

• Basic pay, and 
• Any pay in excess of basic pay in respect of - 
  •  Shift premium; 
  • Piece work; 
  • Overtime; 
  •  Unsocial hours worked; 
  • Hours worked on a Sunday. 

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 employeean amount of compensation that is just and equitable having regard to all the circumstances. This compensation can be the equivalent of up to a maximum of two years remuneration. 

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 assignment, 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 they were entitled in respect of their most recent assignment and no less than the minimum wage.

Following a claim taken by the INMO on behalf of five agency nurses, the Labour Court has determined that location and specialist qualification allowances come within the definition of basic pay.  This means that from the 16^th June 2015 agency nurses and midwives may benefit from either the specialist qualification allowance or location allowance where they meet the relevant criteria.  

The specialist qualification allowance is payable to nurses/midwives employed directly on duties in specialist areas where they possess the relevant clinical qualification appropriate to the specialist area in which they are employed.  The location allowance is payable to nurses/midwives employed on duties in designated locations, for example, A&E Departments, Theatre/O.R., Intensive Care Units, etc.   A full list of the areas in which the location and specialist qualification allowances are payable is available under the Allowances section.

No. The Act explicitly excludes sick pay and payments under any occupational pension scheme. 

Under the legislation you are entitled to the same annual leave entitlements as directly recruited employees.  The following are the annual leave entitlements for staff nurses/midwives employed in the public health service: 

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, childcare 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.
         

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 from 16^thMay 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 5^th December 2011.  For example, where public sector agency workers become entitled to increased annual leave entitlements they do so from the 5^th December 2011, even though the legislation provides that such an entitlement is effective only from 16^th May 2012. 

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

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

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.