Terence Flanagan (Dublin North East, Fine Gael)

Ireland's failure to implement the Temporary Agency Work Directive by 5 December has been widely reported in the media. Enactment of this Bill will implement that directive. The purpose of the directive is to ensure that employees and agency workers are treated equally in terms of pay and basic working conditions, as if recruited by the hirer to do the same job. In essence, all agency workers are entitled to the basic working and employment conditions as those to which a comparable employee is entitled, or, if there is no comparable employee, to those to which a comparable employee would be entitled were one employed. There are 35,000 temporary agency workers in this country, representing 2% of our workforce. They are employed in the private sector, principally in the security industry, manufacturing and ICT and, in the public sector, in the health service, mainly as nurses.

The Bill is stated to come into effect from 5 December 2011. Consequently, it is likely that employers will be obliged to backdate pay once the legislation comes into force. However, the retrospective provisions will not apply to the offences created by the BillThe Bill's provisions apply to those who work under the supervision and direction of hirers. Consequently, self-employed persons, contractors and those working on managed service contracts are likely to be excluded. To determine if someone is genuinely self-employed, the courts apply a number of tests which examine all angles of a relationship, including contractual documentation and the conduct of the parties. If the courts conclude that an individual is not self-employed but works under the direction and supervision of a hirer or that the arrangement is an avoidance tactic, the individual will likely fall within the scope of the Bill.

Managed service contracts are based on a contract for services which sets out certain service level arrangements. The managed service contractor has responsibility for managing and delivering the service and employs, rather than supplies, the workers. The managed service contractor must be genuinely engaged in supervising and directing its workers on site on a day-to-day basis and must determine how and when work is done to avoid the scope of the Bill. Basic working and employment conditions are protected by the Bill which expressly excludes sick pay, payments under a pension scheme or occupational social security schemes. However, a collective agreement may be entered into to provide for conditions of employment that deviate from the basic conditions envisaged by the Act, provided they are balanced to ensure the overall protection of agency workers and this can be approved by the Labour Court.

All agency workers are entitled to the basic working and employment conditions as those to which a comparable employee is entitled. Basic working conditions include working time, rest periods, night work, annual leave, public holidays and access to collective facilities such as a canteen and child care. A comparable employee is one who works for the same employer, does the same work and is interchangeable with another. The definition of "pay" in the Bill is exhaustive and, therefore, anything not included in that definition falls outside the remit of the Bill.

The part of the Bill which refers to access to collective facilities such as canteens is the only element of the Bill where there can be "objective justification" for treating the agency worker less favourably. In this regard, there can be a reason for treating the agency worker differently but it must be a good reason. Issues such as cost or practical and organisational considerations could be put forward as such reason. It is worth noting that access to facilities does not mean that agency workers will have an entitlement to enhanced rights. For example, if there is a waiting list for child care facilities there is an entitlement only to join the list. It is worth noting also that the list of collective facilities in the Bill is not exhaustive. Perhaps the Minister will examine this. Along with the list of facilities specifically outlined, this entitlement may extend to additional items such as car parking spaces or shower facilities.

As stated by Deputy Calleary, an important element of the Bill is that there is no qualifying period of service for equal treatment. We know that in the UK and Northern Ireland a qualifying period of 12 weeks applies. This Bill ensures that agency workers will receive equal treatment from day one. While this is positive news for agency workers, it is less positive for employers. Employers and employment agencies are naturally concerned about the additional costs and red tape which this legislation will impose in order to ensure equal parity with direct employees. I agree with Deputy Calleary that this is a difficult time for businesses. They are already facing many challenges and the introduction of this legislation will make their situation more difficult. It is a shame and a pity that the social partners, IBEC and ICTU, could not reach agreement on a qualifying period. That is unfortunate. However, they have up until the eleventh hour to do so. It is hoped that will happen.

As regards liability, the agency is liable for failure to provide equal treatment in respect of pay or basic working conditions and the hirer is liable for failure to provide access to collective facilities or information on vacancies. Hirers must inform agency workers of any vacant positions about which they are also providing information to a comparable employee. Agency workers who allege contravention of their rights under the Bill must furnish their complaint to the Rights Commissioner of the Labour Relations Commission within six months of the date of the alleged breach. Maximum liability under the Bill is two years' remuneration.

This Bill is welcome. Elements of the Bill allow scope for differing interpretations. This flexibility is necessary on a case by case basis. Agencies will be required to review their contract documentation with hirers and will have to seek information from hirers in regard to how much the hirer is paying or would be paying a comparable employee. Agencies will also be required to furnish information to hirers about how individual employees are retained by them. Hirers will need this information to determine who in their organisations will come under the remit of this legislation. Clearly, hirers have a significant amount of work ahead of them. They will be obliged to group together workers and to determine which groups come within the remit of the legislation. They also will be obliged to determine what a comparable employee would be paid and this information, where applicable, must be furnished to the agency. Obviously, much work will be entailed in ensuring that agencies and hirers are compliant with this Bill's provisions. However, from the perspective of workers, it will lead to a fairer and more transparent working environment for many agency workers. One disadvantage of the Bill is that employers are likely to use existing employees, rather than recruiting new agency workers, because of the additional cost involved in this regard. Consequently, they are likely to squeeze more out of the existing employees. In conclusion, I welcome the Bill and express my hope that some kind of 11th hour decision can be made on introducing a qualifying period into the legislation.

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