Dáil Éireann Debate, Wednesday - 6 June 2012
285 Deputy Patrick Nulty asked the Minister for Jobs, Enterprise and Innovation if he will confirm that a company (details supplied) in Dublin 6 must ensure that workers are paid their entitlements back-dated to the 5 December in line with the company’s obligations under the Temporary Agency Work Directive; and if he will make a statement on the matter. [26745/12]
Amharc ar fhreagraThe Protection of Employees (Temporary Agency Work) 2012 Act transposed EU Directive 2008/104/EC on Temporary Agency Work into Irish law. The Act provides for equal treatment in terms of basic working and employment conditions for agency workers, as defined in the Act, as if they were employees recruited directly by the Hirer to do the same or similar job. The Act covers
(a) Basic pay.
(b) Working time.
(c) Rest periods.
(d) Rest breaks during the working day.
(e) Night work.
(f) Overtime.
(g) Annual leave.
(h) Public holidays.
(i) Access to collective facilities and amenities (e.g. canteen, childcare and transport facilities).
(j) Access to information on vacancies in the hirer company.
The provisions in relation to "pay" for agency workers on assignment on 5 December 2011 have retrospective effect to 5 December, 2011 (the date of transposition of the Directive). In respect of agency workers that commenced assignment after 5 December 2011 but before the Act came into effect, the provisions in the legislation relating to "pay" have effect from the date of assignment.
The Act provides a derogation from the principle of equal treatment in relation to ‘pay' in respect of agency workers who hold a permanent contract of employment with an employment agency. For this derogation to apply:
The agency worker must be notified of the implications of the derogation in writing in advance of signing their contract of employment.
The contract of employment must include a statement to that effect.
The agency worker must be paid between assignments at a rate of no less than half of the pay they were entitled to in respect of their most recent assignment (not less than the National Minimum Wage).
In relation to all other entitlements, the legislation is effective from the date of enactment of the Act. "Pay" is defined in the Act as basic pay, and any pay in excess of basic pay in respect of, shift work, piece work, overtime, unsocial hours worked or hours worked on a Sunday but does not include sick pay, payments under any pension scheme or arrangement, occupational social security schemes or financial participation schemes.
The Act does not prescribe the rate of pay other than to require that the rate of pay for the agency worker should be the same as that which applies to a direct employee of the hirer recruited to the same or a similar job. This must have regard for established pay scales, collective agreements, terms and conditions of employment etc. that apply in enactments, collective agreements or any arrangements that apply generally in respect of employees or to a class of employees. The Act specifically allows for the application of arrangements whereby agency workers are entitled to conditions that are better than the basic working and employment conditions provided in the Act.
The hirer is obliged to provide relevant information to allow the Agency to comply with the legislation. Should proceedings in relation to a contravention of the Act be brought by the employee against the agency and the contravention is attributable to the failure by the hirer to provide information as prescribed then the hirer shall indemnify the employment agency in respect of any loss incurred by agency that is attributable to such failure.
Complaints in respect of contraventions of the Act may be presented to the Rights Commissioners within 6 months of the date of the contravention and up to 18 months where reasonable cause for not presenting the case is shown.
