Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)

Yes, but it mentions agency workers. Unite states that the proportion being considered is 90%. Even if it is less than 90% it will be very difficult for unions to have a high level of representation among agency workers because unions tend to organise in the workplace in the organisation or body and not among the agency workers. How can they be organised? It would be extremely difficult to do so. This is a major problem which needs to be dealt with.

There is also the question of comparators. If the job for which somebody is being contracted has an obvious comparator within a company or organisation contracting the employees, there can be a fairly easy direct comparison. If such a position does not exist in the company, there must be a kind of hypothetical comparison, which can be problematic as there can be a difficulty in defining the comparison. There is a particular difficulty as there is a requirement in the directive for three types of comparability, as the comparable employee and agency worker must do the same work under the same or similar conditions, the work done must be of the same or similar nature, and the work must be equal to or greater in value than that of the comparable worker, having regard to skill, physical or mental requirements. In equality legislation only one of those criteria must be met. As a result, the comparison may not be broadly defined, leading to the possibility of employers undermining the ability of the agency worker to make a reasonable comparison between the work he or she does against a person doing similar work. That issue must be considered.

Section 22 concerns penalisation of employers who abuse agency workers. I hope what is contained in the section is a mistake or a printing error and if it is not, there should be an explanation. Section 22(2) states:

If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts.

If somebody is dismissed in contravention of subsection (1), it appears relief may not be granted. I assume this is a mistake but if it is not, the Minister might explain the reasoning behind it.

There is a question of training and the need to include an element in the Bill which would give some right to agency workers to access training courses that may be available to full-time and directly employed staff. There may not be the possibility of precisely the same rights to courses if a person is employed on a short-term basis but there should be some provision for training in employment.

The key issue is the so-called Swedish derogation. It should be deleted because if it remains, it would fundamentally undermine the entire point of the legislation and provide a way for agencies or employers to get around the central purpose of this legislation, which is to ensure equal rights for agency workers and those with direct employment.

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