The long awaited guidance document (“the Guidelines”) on the Protection of Employees (Temporary Agency Work) Act 2012 (“the Act”) has been published by the Minister.
The Guidelines are intended to assist agency workers, hirers of agency workers and employment agencies to better understand the provisions of the Act. They also seek to clarify some of the issues in the Act.
Unfortunately, the Guidelines are disappointing in so far as much of the document simply repeats what is already stated in the Act. It runs to only 12 pages and fails to set out any practical examples, unlike the UK equivalent document which is far more comprehensive and useful in terms of acting as a practical guide to the interpretation of the equivalent legislation in the UK.
This article focuses only on those areas of the Act on which the Guidelines provide information and clarification over and above what is stated in the Act.
Broadly, the Guidelines clarify the entitlements conferred by the Act and the obligations and responsibilities for the parties involved. The Act gives agency workers the entitlement to the same treatment as comparable employees with respect to basic employment and working conditions, had they been employed by the hirer under contract at the same time.
The Guidelines confirm that the pay provisions of the Act are retrospective, which means that agency workers who were on assignment on 5th December, 2011, are entitled to equal treatment in relation to pay as and from that 5th December date. For those agency workers who commenced employment after the 5th December, the provisions relating to pay take effect from the date off their assignment.
Sections 13 and 22 of the Act (dealing with offences under the Act) are effective from the 17th May, 2012.
All remaining provisions of the Act are effective from the 16th May, 2012.
What the Guidelines do not clarify is from what date the 6 month time limit under the Act should be calculated for claims relating to equal pay, given the retrospective nature of the Act. It would have been helpful had the Guidelines addressed that question.
TO WHOM THE ACT DOES NOT APPLY
The Guidelines confirm what the Minister stated during the Dail debates on the Act. In that regard, the Act does not apply to the following;
- independent contractors, placed by an Employment Agency;
- placement services (i.e. where the agency introduces a person to an employer for a directly employed position with the latter, and where there is no on going contractual relationship between the person and the agency);
- Managed Service Contracts – where the managed service contractor has responsibility for managing and delivering the service and employs, rather than supplies, the workers.
COLLECTIVE FACILITIES AND OBJECTIVE JUSTIFICATION
The Guidelines confirm that the Act allows for objective justification for refusal of a Hirer to provide access to collective facilities to an agency worker. The Guidelines state that objective justification cannot be based on economic considerations but would, for example, allow for a situation where a rota system/waiting list applies to direct employees for particular facilities. In the same way, this conditionality would apply to agency workers. Even if there is objective justification, the Guidelines provide that consideration should be given to whether it is feasible to offer agency workers certain access to facilities on a partial basis, as an alternative to exclusion altogether.
In terms of what constitutes a “collective facility”, the Guidelines provide a non exhaustive list as follows;
- canteen or similar facilities;
- a workplace crèche;
- transport services such as local pick-up and drop off transport service or transport
between sites but does not extend to e.g. benefit-in-kind type entitlements or contributions towards company cars;
- toilet/shower facilities;
- staff common room/kitchen facilities;
- food and drinks machines;
- car parking.
The Guidelines also confirm that if a canteen, for example, is used on another site, or shared with another company, this should also be available to agency workers.
RESPONSBILITIES OF AGENCIES AND HIRERS
The Guidelines confirm that the Act requires enhanced communication between the agency and the hirer. The hirer must inform the employment agency of the correct rate of pay, annual leave entitlements and any other payment arrangements/allowances that an agency worker is entitled to under the Act (i.e. what would they have been paid if directly recruited to do the same or similar job?)
The Guidelines confirm what is included in the definition of pay, as follows;
Basic pay, and any pay in excess of basic pay in respect of –
Shift work, if applicable, i.e. if a directly recruited employee in the same or similar job would get paid a shift work premium then the agency worker is entitled also to be paid this premium at the same rate.
Piece work, if applicable. 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 payments, if applicable. If a directly recruited employee in the same or similar job would get paid overtime rates then the agency worker is entitled also to be paid overtime at the same rate under the same terms and conditions.
Unsocial hours worked, if applicable. If a directly recruited employee in the same or similar job would get paid a premium for working unsocial hours, the agency worker is entitled also to be paid for working unsocial hours at the same rate.
Hours worked on a Sunday, if applicable. If a directly recruited employee in the same or a similar job is paid a premium for working on a Sunday, the agency worker who works on a Sunday is entitled also to be paid the same rate for hours worked on a Sunday.
The Guidelines confirm that, when deciding what rate of pay should apply to an agency worker, regard must be had to established payscales; collective agreements; terms and conditions of employment that apply in enactments, collective agreements or any arrangements that apply generally in respect of employees or to a class of employees.
It would have been helpful here had the Guidelines set out some practical examples but that opportunity has been missed.
The Guidelines confirm that if a hirer provides an entitlement to annual leave in excess of the statutory minimum, agency workers are entitled to the same, pro-rated in the case of agency workers who are on assignment for only part of a leave year.
ACCESS TO INFORMATION ON JOB VACANCIES
The Guidelines confirm that agency workers are entitled to be provided with information about any relevant job vacancies within the hirer that would be available to a direct recruit. Hirers can choose how to publicise vacancies, whether via the internet/intranet, or on a notice board in a communal area. Whatever method the hirer uses to publicise this information, the agency worker should know where and how to access it.
The above obligation does not, however, constrain hirers’ freedom regarding:
- any qualification or experience requirements, such as time in service with the organisation; or
- the manner in which they treat applications.
The hirer is responsible for providing equal treatment entitlements in relation to access to collective facilities and amenities and access to job vacancies, and is liable for any breach of these obligations as the Agency has no control over these aspects when an agency worker is on assignment with a hirer.
Accommodating the Act will require planning and new working practices, and compliance involves addressing the entitlements conferred and the obligations and responsibilities for all parties involved. The Guidelines as published are helpful to a degree to hirers and agencies alike but many questions on the correct interpretation of certain provisions of the Act remain unanswered.
For further information, to receive a copy of our legal updates or to discuss any aspect of Employment Law please contact any of the Solicitors in our Employment Law Departments at:
Cork Office: 12 South Mall, Cork
Telephone: 021 4802700
Galway Office: RDJ Glynn, Aengus House, Long Walk, Galway.
Telephone: 091 594777
This release is intended as a general guide to the subject matter and should not be used as a basis for decisions. Whilst every effort has been made to ensure accuracy no liability can be taken for any omissions or errors.