Richard Bruton (Dublin North Central, Fine Gael)

The Deputy raised these issues on Committee Stage. We had a discussion about and reflected on them. The first amendment concerns cases in which the overall package is good but some individual terms are not as good. The directive is clear in this regard. It does not allow us latitude to take an aggregate package. Essentially, the view is that if such arrangements were permissible, they would be manipulated. There could be a lower basic rate in the expectation that a person would be offered overtime which might then not materialise and the person concerned would be left on the lower basic rate. The fear is that this arrangement would be manipulated and the directive does not give us latitude to weigh one against the other. The basic rights are spelled out. This is about basic minimum rights which have to be observed.

On the second issue the Deputy seeks to go beyond what is permitted by the directive, the wording of which requires that equal treatment be afforded as if the agency worker was directly employed. Therefore, the words "be entitled" which the Deputy is seeking to have deleted are appropriate. The amendment would introduce additional conditionality that the directive does not allow; therefore, it is not legally possible to agree to it, as it would potentially bring us into conflict with the European Commission for incorrect transposition.

The Deputy cites the example of an employer who employed workers two or three years ago at higher rates but now the going rate is lower and he or she is seeking to employ agency workers at the lower rate. The crucial issue is whether a worker was directly employed on the day he or she was taken on, or on 5 December, from which the measure has effect. The hirer will decide, but it will be open to challenge by the worker on the grounds that the employer is arbitrarily choosing a rate that is much lower than the rate for all other employees. The employer will then have to make the case that as and from 5 December the rate to be applied to the job was the one offered, even though there might be workers on the higher rate applied two years before. The onus is on the hirer to show that he or she can back up the choice made. If he or she is directly employing employees on that day, he or she has a clear comparator. He or she might be able to claim that he or she has taken on one full-time employee and three agency workers on the same basic rate; in that instance he or she will have a cast iron case. If is only where he or she takes on agency workers and the only comparable employees are on much higher rates, that he or she will have to produce evidence to back up the choice made. It is important that this onus rest on the hirer and that we do not allow an arbitrary situation where he or she could claim that the rate has been manufactured out of the air. The hirer makes the decision; he or she decides the going rate for a direct employee. That is the rate for the agency worker. If this is challenged by the agency worker, the employer will have to back up the choice made. I can see what the Deputy is saying because undoubtedly rates have come down in many instances, but this is designed to protect the employee and make sure there is a proper basis for the rate.

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