In the domestic context, IBEC has opposed any additional regulation of temporary agency work or of employment agencies other than by reason of what has emerged by agreement between the social partners under section 21 of Towards 2016. This will bring significantly improved protection to temporary agency workers through a new licensing system of employment agencies and a proposed statutory code of practice that will set out the practices and standards that employment agencies will be expected to follow. Employers are extremely concerned about the implications of the proposed EU directive, which is part of the highly regulated European labour market model. As has been observed in member states where stringent regulation of agency work was introduced, this is damaging to the business agility for which we have a strong national reputation and which is important for business development and investment.
At the heart of social partnership, consistent with the need to maintain a competitive economy, is the need for a more balanced approach to social measures, particularly in line with stated commitments on labour market flexibility in the context of the Lisbon process. Temporary agency work has proved to be a critical feature of the labour market and provides flexibility for both companies and agency workers. The relationship between the user undertaking and the agency is purely commercial in nature. One of the features of temporary agency work is that it involves a tripartite relationship between the temporary worker, an employment agency and the user undertaking. Typically, there is no contractual relationship between the end user and the individual agency worker. Generally, there is a contract of employment between the agency worker and the agency, and a further commercial agreement between the employment agency and the end user.
The use by companies of agency staff raises legitimate questions. First, do such employees have the proper and necessary protection under law to prevent any abuse of their position? Second, do these staff provide vital services to companies that might not otherwise be available and, in doing so, contribute to the overall strength of the economy? The answer to both questions is a clear and unequivocal "Yes". The legislature has intervened to deem the agency worker to be the employee of either the employment agency or of the user undertaking, as the case may be, for the purposes of the individual employment Acts. For the purpose of the majority of such employment legislation it is the party responsible for paying the temporary agency worker's wages who is deemed to be the employer. This is usually the employment agency. In the case of the Unfair Dismissals Acts 1977 to1993, however, the end user is always deemed to be the employer. Agency workers have the same protection as permanent workers with regard to unfair dismissals, redundancy, holiday pay, minimum wage and working time. Under the Redundancy Payments Acts, if an agency worker is employed in four different jobs for two years, as long as the agency remains the same and that agency is the employer, the person will be entitled to redundancy payments.
Before any additional regulation of temporary agency work or employment agencies is contemplated, more reflection is required on the variety of forms of agency work. Many agency workers have no obligation to make themselves available for placement and may refuse offers of placement from the employment agency. Without mutuality of obligation, IBEC submits that such forms of agency worker should not be afforded the same rights as the permanent employees of an end user while maintaining all of the flexibility of being self-employed.
Direct employment contracts of an indefinite duration are and will continue to be the most common form of employment relationship between employers and workers in Europe. However, there is no doubt that temporary agency workers have contributed to an increase in active participation in the labour market, mainly by facilitating the entry of women and young people into the employment market. They have also contributed to the improvement of business competitiveness by providing a flexible response to sudden changes in business conditions. This is particularly the case in Ireland, where there is continuous, sophisticated use of temporary agencies for both sourcing and recruiting permanent staff as well as providing temporary cover. Companies based in Ireland use the flexibility and expertise available through agencies to supplement their other staffing policies. In contrast to the situation in many other member states, this is a normal process of business which covers all levels and seniority of work and sectors. In Ireland it is common to see highly skilled and experienced individuals, who are in significant demand, working through agencies, often by choice, in order to have total flexibility and independence, and to be in a position to demand significant remuneration.
The use of agency workers as part of a supplementary workforce is most prominent in sectors such as ICT, food processing, construction, manufacturing, transport and haulage, hotels and catering, to name but a few. In IBEC's opinion, an additional measure with regard to parity of terms and conditions for temporary agency workers would reduce and in some cases remove the advantages of agency work for businesses and, as a result, seriously hinder employers' capacity to respond to fluctuating business needs.
The directive, if adopted, would also serve to reduce the incidence of flexible work in the economy. Furthermore, it would erode the perception of Ireland as an environment possessing an adaptable and responsive labour market, and fails to take into account the considerable range of circumstances - including the duration of the assignment, the nature of the work performed and experience - which can apply to situations in which agency workers are deployed. This is the last thing we need at a time of greater economic uncertainty. Such inflexibility in the use of agency workers would reduce the capacity of employers in the sectors outlined to respond to short or medium term seasonal or production requirements.
In Ireland, agency work is very attractive to individuals as a means of entry to the labour market to gain initial experience. This can include recent school-leavers or graduates who wish to gain experience to help build their careers and as a stepping stone to more permanent positions. The availability of agency work is often attractive to those returning to the labour market who may have been out of the workforce for a while or other EU nationals who want to assimilate into the Irish labour market. Temporary agency work is also attractive to the parents of young children as a useful way of combining work and family life by allowing them freedom of choice and flexibility about when they want to work.
On the specific issue of equal treatment, it is entirely reasonable that workers who have been assigned by an agency to work for the end user on a short-term basis have different terms and conditions to those working directly for the end user, given the fundamentally different nature of the relationships between the end user and an agency worker and between an undertaking and a direct employee. The package of terms and conditions an employer agrees with both its fixed-term and permanent employees reflects the ongoing commitment the employer is entitled to assume on the part of such employees. Those terms and conditions often reflect the level of knowledge that the permanent employee has of the company's product and client base which has been developed over time by reason of the direct employment relationship. As there is no expectation or entitlement on the part of the end user to such ongoing commitment from the temporary agency worker, it follows that temporary agency workers can have no expectation, as an automatic right, of parity of terms and conditions with the employer's established staff.
Given the short term nature of agency work an implication of the equal treatment provision is that an agency worker on multiple short term assignments will get a different rate of pay each week where he or she is working with different end user clients of an agency. In practice it is often the case that one temporary agency worker can be interchanged or substituted for another by the supplying agency without any prior consultation with the end user. It would be entirely unreasonable that conditions negotiated with one employer or business could become statutorily binding on another enterprise, save for compliance with minimum statutory conditions of employment.
Some within the Irish trade union movement have argued that Ireland is one of only three countries not to have legislated for equal treatment of agency workers. More accurately, there is no specific regulation of equal treatment in Ireland, Sweden, Denmark and the UK, and all four countries have a system of agency pay. A further five member states - Bulgaria, Cyprus, Estonia, Lithuania and Malta - do not have any specific regulation on agency work or of pay in place. The simple truth is that across the European Union there is a wide diversity of practices adopted by the member states in response to the regulation of agency work. In the case of other member states who have adopted the equal pay principle and have regulations on user pay, there is a significant number within this group who allow derogations by collective agreement and have differing qualifying periods. In those member stateswhere user pay is the norm, the definition of what this means differs substantially, often allowing for specific elements of national labour law and practice to be taken into account. This reflects the folly of universal proposals to address such complex issues.
In debating the issue, it also clear that union pronouncements in Ireland about the alleged plight of agency workers have not been validated and are largely motivated by trades unions seeking to protect sector pay norms established through collective bargaining, rather than demonstrating a primary concern over agency workers. There is no significant accurate research on the use of temporary agency work in Ireland, but for different organisations the use of temporary agency work is vital. I offer the following examples. Many multi-national companies who operate systems that might be described as "coreflex".