Richard Bruton (Dublin North Central, Fine Gael)

With the exception of sections 11 and 14, as amended on Committee Stage, responsibility for breaches of the legislation is attributable to the employer of the agency worker given the direct employment relationship that exists between the two parties. However, exceptionally in sections 11 and 14, which relate, respectively, to the rights of agency workers to vacancy notices relating to job opportunities at the hirer's undertaking and the right to access amenities and collective facilities at the hirer undertaking, responsibility for these aspects rests solely with the hirer. For all other matters in respect of which a breach is claimed, the employment agency is responsible.

In parallel with the provisions in sections 11 and 14, Schedule 2 proposes that, in these specific instances, the hirer undertaking has sole control and discretion over these aspects that can be taken before the rights commissioner. For all other issues, the employer of the agency worker will potentially have a case for breach of the legislation taken before a commissioner. However, an important consideration is that set out in section 15, which provides for the subsequent indemnification of the employer in the event that the breach which occurred, if proven, was incurred as a consequence of the failure of the hirer of the agency worker to provide accurate information to the employment agency in the first instance.

I have taken advice on this approach and understand that this is a preferable route to take and is much simpler than the enjoining of two parties, only one of whom has responsibility for the breach. This would have the undesirable effect of usurping the time and resources of all parties concerned, including the rights commissioner service, when there is a simpler solution. For this reason, I am not in a position to accept the amendment.

The legislation makes clear where the responsibility lies in each case where there is a failing. If it clearly falls within the hirer's responsibility, namely, vacancies or not providing access to facilities, then the case is taken to the rights commissioner against the hirer. If the breach relates to pay and conditions, the case is taken against the employer agency. If the commissioner then rules in favour of the worker that the employment agency failed to provide the basic pay and conditions, he or she will make an award to the worker and the onus will fall on the employer, if he feels the responsibility lies with the hirer because he has given false information, to pursue him. The worker is, therefore, not delayed while that new action is tried. The onus is on the employer to go after the hirer for his failure under the contract between them. This is cleaner and provides more direct access for workers to the rights commissioner to try the case if the hirer failed to give them access to collective conditions in the workplace. They take a case and the process is clean. If they take a case on pay and conditions, they take it against the agency and they win. It is up to the agency then to pursue the employer. I am advised this is cleaner and better for the worker to pursue his case with clarity as to who is responsible in each case and leaving the agency to pursue the contract it had with the hirer if there is a dispute following the award.

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