Richard Bruton (Dublin North Central, Fine Gael)

A number of issues were raised in respect of the Swedish model. That model is not prevalent in Ireland. It is not the case that people in the public service are paid retainers for periods during which they are not working. It is obviously an arrangement which can be suitable for both sides. Deputy Wallace described the way in which people were employed in the construction sector in recent times, namely, where they could be working for a couple of days, then be off and then be back in employment again. In such circumstances, being paid a retainer in respect of the periods during which one is not working can be attractive. We are seeking to have in place an arrangement which can be used if it suits both sides. Flexibility exists in this regard. It is not the intention that this arrangement would allow people to bypass the provisions of the legislation. If it were abused in that way, we would certainly revisit the issue. Essentially, this is not a system which is in place. However, we recognise that it could be used but not abused. It is provided for under the directive and there are cases where it is used in other countries, but not in a way whereby it is capable of being abused. We are including the derogation now because we would not be able to do so later.

The protections in respect of this matter are stronger than the Deputies have indicated. The commitment must be to permanent employment. In other words, a person must be taken on by an agency as a permanent employee. If this is done in a bogus fashion, if it is used as a way to try to bypass paying agency workers who are taken on for short-term assignments by pretending that they are long-term employees and if a challenge arises, then agency workers will have the right to make retrospective claims in respect of the entire periods during which employers failed to apply the terms of the agency work directive. If employers seek to abuse this aspect of the legislation and, as Deputies fear, use it for short-term gain, there is a strong case in respect of their being challenged. As already stated, agency workers would also be in a position to seek equal treatment on a retrospective basis right back to the day on which they were first employed.

There is a balance on both sides. For example, a balance will apply when the arrangement is put in place and we will be seeking that clear, written statements will be provided to agency workers which will indicate the conditions which will apply to them, that these will be different from those outlined in the law, as it applies, and that they will they will be paid the rate which applies under the REA or the 50% rate which applies in respect of downtime periods. There is another protection in place in respect of cases where agencies might use this mechanism as a short-term way of abusing the terms of the arrangement. In such circumstances, a claim can be made and the whole construct created by an employer in respect of pretending that some form of long-term commitment exists would fall. We are of the view that a balance has been struck. This is not an area of which we have experience because there is not a wide range of contracts of this nature of which we are aware.

Information is not available with regard to the percentage of people who are classed as permanent agency workers. It is certainly the case that some individuals are taken on as temporary agency workers and that they later enter permanent arrangements with those who hired them. However, we do not have data of the type sought by Deputy O'Dea.

We are trying to strike a balance in respect of providing what could be a reasonable and flexible working arrangement for some people. We are also seeking to ensure there will be adequate protection available and that in downtime periods, people will be paid at least 50% of their normal remuneration. Furthermore, the Bill stipulates that a permanent contract of employment must be provided in order that these workers will know they are being offered permanent positions.

If the agency does not deliver, there is a right of redress.

I can see people may be concerned about how a process could be abused but we have provided protections and we will certainly monitor it. If there is a sense that abuses are creeping in which undermine the value of the provision, we will revisit it. We have designed a scheme which is reasonable and robust in defending against abuse but which leaves open a system which may suit both sides.

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