Richard Bruton (Dublin North Central, Fine Gael)

The Deputy raised this on Committee Stage. I have received advice from the Attorney General that this is the correct way to proceed, arising from our EU obligations which include that this be effective from 5 December.

As the Deputy knows, there was considerable negotiation and hope that there would be a provision for a qualifying period before equal treatment would apply. That did not prove possible. To ensure that agencies and hirers were informed of their obligations we undertook very considerable communication with employer organisations and agencies. The obligation comes under our EU obligations. Already the Constitution recognises that obligations caused by our membership of the European Union have precedence, and the Constitution cannot invalidate Acts that are in accordance with our obligations under the Constitution. On the basis of the legal advice I have received, this is the proper way to proceed.

It is true that the agency has the obligation in the first instance. If an agency worker complains of its failure, the matter will go to the rights commissioner and the rights commissioner will adjudicate. There would be a separate issue of the agency recovering from the hirer if there was a failure of the hirer to co-operate properly with the agency. That would be a matter for the civil law, with the agency taking an action to ensure recovery if there was inadequate co-operation. This issue was well flagged and agencies were engaged in the consultative process. Therefore, it did not come as a surprise. There was a clear understanding on all sides that this obligation would take effect from 5 December. There was, of course, hope its could be deferred under an element of the directive that allowed the social partners, acting exclusively on their own, without a specific role for the Government in making the decision, to seek a qualifying period. In the event, that negotiation was not successful.

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