I thank the Chairman. On my behalf and on behalf of my colleagues, I wish to say how much we appreciate the invitation from the committee and the opportunity to address its members. We also appreciate the fact the committee is taking an interest in the question of agency workers which is causing us a great deal of anxiety these days. In a preliminary discussion we had, the Chairman indicated he would like me to be reasonably brief. I am aware members of the committee have had a look at the quite lengthy submission we have made so I will not go through all that. It may be useful, however, if I spoke a bit about the context of this matter as well as summarising the key legislative points we need to achieve to rectify the difficulty we see on the ground.
While the issue of agency workers is of great concern to us in Ireland, it is on a twin-track in the European Union because the European Commission for quite some time has been trying to get agreement among member states on a directive concerning agency workers. Most recently, under the Portuguese Presidency, an initiative was taken to try to crack the final differences which are outstanding between countries. In fact, the majority of European countries — all except three — have comprehensive legislation covering the employment of agency workers. The three countries in question are Hungary, Britain and Ireland. To some extent, Hungary has provisions in place to offer protection. Britain and Ireland are unique in the European Community, however, in having a very low level of protection for people employed in agencies.
The most recent initiative of the Portuguese Presidency failed because it was not possible to get agreement with Ireland and Britain on two specific points. One concerns equality of treatment, which I will come back to, and the other is the timeframe over which persons would be employed to ensure they are eligible to be treated in like manner to a non-agency person alongside whom they are working. The EU was not able to get this agreement. Britain was supported by Germany on that occasion and there was a blocking minority in the three countries.
There is a parallel discussion going on in the United Kingdom at the moment and I can give the committee more information on that if members so wish. We have been in frequent contact with the TUC about it and with the European Trade Union confederation which is processing the matter at European level.
As regards our own domestic situation, we must refer to the context in which this has become an urgent problem in Ireland. It can be traced back to the enlargement of the EU when we had a significant increase in the numbers of people from the accession states coming to work here after May 2004. As members of the committee know, Ireland, Britain and Sweden were the only three members of the original EU 15 that opened up their labour markets fully without any kind of derogation in terms of timescale. As a result, we had quite a significant influx of people to this country. When that happened, it quickly became apparent through a number of high profile cases of which members of the committee will be well aware, including Gama construction and Irish Ferries, that the potential for exploiting conditions of employment were quite significant. This is because Ireland has a very low level of regulation in its labour market. We have an even lower level of enforcement in respect of the regulation we have.
In 2005 congress became aware that we would be obliged to petition the Government to put in place a legislative framework to offer the protection necessary to incoming workers and to members of the indigenous workforce. A good body of legislation has been agreed under Towards 2016 and the various items that comprise this corpus are at different stages of enactment.
Among the measures agreed was the introduction of a Bill to regulate employment agencies. There is legislation in this area but given that it was enacted in 1970, it is hopelessly out of date. It was agreed to introduce legislation and the parameters relating thereto were more or less agreed when Towards 2016 was being put in place. However, it gradually became clear to us that the use of employment agencies as a means to engage people's services was becoming much more prevalent. There are approximately 520 such agencies in the country at present and, in addition, a large number are operating externally, via the Internet, etc. There has been a phenomenal growth in the degree to which employment contracts are mediated through employment agencies.
It eventually dawned on us that the traditional idea of an employment agency providing someone with a means to take up temporary employment in a clerical or nursing post or whatever was changing dramatically. It became apparent that the provisions we had agreed with the Government under Towards 2016 were completely inadequate to deal with the emerging situation. We were obliged, therefore, to petition the Government to bring forward further legislation to deal with the problems outstanding. In parallel, we petitioned it to agree to the accommodation on the relevant European directive. That, more or less, is the current position. We have not been able to achieve anything on that and it will be a major issue in the forthcoming negotiations we are likely to have with the Government in the coming months.
That is the context for our concern and it is set out in the paper we submitted. I will provide a summary of the principal points in that paper. The first of these is the principle of equal treatment, which informs all of the legislation introduced in every country in Europe with the exception of the three I mentioned earlier. I refer to a situation where a person employed by a particular business is doing precisely the same work as one of his or her colleagues. In normal circumstances, and under our equality legislation, if two people are paid differently or have different conditions of employment, either one is entitled to bring a case for equal treatment based on the comparator — that is, the circumstances of the person alongside whom he or she works. If, however, a person is placed in a company by an employment agency, he or she is prevented from doing so by law and can only compare his or her circumstances with those of others placed in positions by that employment agency.
This is the first principle of equal treatment and it comprehends wages and all of the other conditions of employment people normally expect as part of their work contracts. Members can see how, if taken to extremes, the method of employment to which I refer can be used to force down conditions of employment. If a substantial element of a workforce is employed through an employment agency, the potential to reduce the conditions of employment of those involved would be quite significant.
The second point of concern to us is the length of time of which an employer can avail in terms of using a person to fill a post. The conventional idea is that a person might be brought in to cover maternity leave or sick leave. However, people are being brought in for prolonged periods. This reinforces the idea to which I referred earlier, namely, that agency work is redefining the employment relationship. It is no longer the exception; it is becoming the rule.
In certain circumstances the use of agency workers should be prohibited. Generally, such an approach informs legislation elsewhere. Even in Britain, one of the worst performing countries in this regard, provisions are in place to ensure, for example, people cannot be employed to do dangerous work or replace workers involved in industrial disputes or matters of that nature.
The employment agency and end user employer should be made jointly and severally liable in order that workers can ensure enforcement of their rights. A problem in practice is that where a dispute arises as to a person's rights, the employment agency and end user employer both deny liability or, in fact, that they are the employer of the person in question. Members will have seen from the submission that under existing legislation, conditions differ according to circumstances. To avoid ambiguity or a clash with existing legislation, liability should apply jointly and severally to both employers.
Agencies should not be allowed to charge workers for any cost arising from the job. For instance, the possibility of charging for services, training and so forth should be precluded.
The ICTU is concerned about the potential for infringement of existing legislation in the equality area in respect of recruitment. For example, most employers who have any sense will not overtly discriminate in the selection of people for positions on the eight grounds enshrined in equality legislation. The danger, however, of using employment agencies is that by using a method of profiling, that is, of giving a specification, so to speak, to the agency of the type of person who would ideally suit the position in question, the agency will only forward the profiles of persons whom it knows the employer wants. We have presented to the joint committee some evidence of surveys we have conducted which indicate a belief on the part of individuals who have used the employment agency system that there is, let us say, a resistance to certain categories, the most obvious being pregnant women, older people and other categories one would expect.
Employment agencies should be properly licensed to practice in accordance with a statutory code of practice. Individual agencies should be required to place a bond to ensure that in the event that they fold and sufficient money is not available to pay workers, the bond can be cashed in, as it were, to ensure the outstanding moneys become available. By the same token, anyone seeking to operate as an agency should be required to be licensed and it should be an offence for anybody to use an agency which is not licensed. Accordingly, increased sanctions are needed for non-compliance in this regard.
To return to the core of the European discussion on the length of time for which rights should apply, the trade union position generally has been that these rights should apply from day one and that there should not be a grace period of weeks or days before which a person in employment is entitled to claim equal treatment with his or her colleagues. In the context of the discussions on the European directive, the ETUC agreed, in an effort to have this issue settled, on a six week period as being acceptable across Europe. Unfortunately, adoption of this position did not result in the type of agreement everybody had hoped for. Positions on this matter have hardened significantly in Britain and among individual Irish unions. For practical purposes, a sensible period is required and six weeks was not a bad arrangement. The idea of 12 months which has been floated at Government level is crazy, as such a period would be so long as to eliminate for all practical purposes most realistic working scenarios that would arise. We must have a practical operable working period when the protections included in legislation kick in. Our review of the current state of legislation which is practically non-existent, apart from the 1970 Act, and the conditions in different industries suggests to us that those priorities are necessary. As the Chairman is aware, my colleagues are daily practitioners of the black art of industrial relations and will be able to give him good examples of what is happening on the ground relating to any of the key issues to which I referred.
