Brendan Ryan (Labour)

I welcome the Minister of State, Deputy Calleary. We are dealing with the temporary agency workers directive 2004/104/EC which must be transposed into Irish law. It was published on 5 December 2008 and must be transposed by 5 December 2011. I question why it has taken us until now to get seriously involved in it.

I welcome the directive which is a good one. Its transposition into Irish law would be welcome. I hope it will result in legislation of which we can all be proud. The equal treatment principle which is contained within article 5.1 of the directive is progressive. I will refer to it later. I wonder whether we would have come up with such measures left to our own devices. It is an example of where European Union legislation and the work of the Union can benefit Irish people in a progressive way. I concur with a previous speaker who referred to it as one of the benefits of membership of the European Union. We must transpose the directive into Irish law. Some flexibility is allowed within the directive, including possible derogations but, by and large, the resulting legislation must reflect what is contained in the directive and its major principles.

I am against the concept of a qualifying period for equal treatment. Such a concept is alien to me in terms of people's rights. There should be equal treatment from day one. Nobody should be in a position to deny workers who come along at a later stage the right to equal treatment in any employment in which they engage. Such an approach is wide open to abuse. I am surprised by the news that Britain has opted for a 12-week qualifying period. Situations could arise whereby an agency would send a worker to an employer for eight or ten weeks and then put someone else in the position. I am totally opposed to the concept.

The directive deals with the triangular relationship; the employment contract on the one hand and commercial contracts on the other hand. Employment agencies are outside the scope of the directive. The Oireachtas Joint Committee on Enterprise, Trade and Innovation has considered the directive. I have seen the consultation documents. One of the issues that arises relates to the reference to economic activity in article 1.2 and the question of Departments and State agencies engaging the services of outsiders. That might not be defined as economic activity but I do not think there is a problem with it. There is economic activity and a commercial element to one half of the relationship so I do not envisage any difficulty in that regard.

A possible derogation is envisaged on article 1.3 which refers to member states after consultation with the social partners providing that the directive does not apply to employment contracts or relationships conducted under specific publicly supported vocational training. I accept the principle which appears reasonable but it is difficult to visualise how such an agency would be engaged in that type of employment. It may be possible but it is difficult to see how agencies would engage in a public utility. I could be convinced in that regard.

Article 3 deals with adopting definitions. In his commentary the Minister of State referred to adopting the definitions contained in the Organisation of Working Time Act 1997. That is positive. We should continue to hold on to what we have. I welcome the fact that we are not departing from those principles. The question of equal treatment arises in article 5.1 which states, "The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly to occupy the same job." I welcome that positive statement. Article 3.1(f) defines basic working and employment conditions. Agency workers should not be used to frustrate the rights or opportunities of other workers. An employer should only engage in hiring agency workers with the agreement of the existing workforce. For example, the HSE is exploiting the use of agency workers. I know of someone who has taken a sabbatical and is entitled to return after one year but who is being made to wait a further year before being rehired because the HSE is using agency workers to frustrate her efforts to return.

There are questions surrounding whether more generous conditions should apply to agency workers in respect of their working times. To do otherwise would be to go against the principle established in the directive which has been worked on for some time. The consultation document refers to difficulties encountered in practice, but there will not be any. In many organisations holidays are earned. For example, holidays are earned having worked for one month. Therefore, this will be easy to administer.

I differentiate between profit sharing, pensions, etc. There is a case to be made for considering existing long-term arrangements outside the context of the directive, but I am open to being convinced. There might be a reason for us to opt out.

Possible discrimination against pregnant women and nursing mothers is an issue. In a regular employment arrangement risk assessments must be made for all types of work in an organisation, but additional assessments must be made where a worker is pregnant. Having done this, the decision in normal conditions might be to remove a worker from a particular type of work for the duration of the pregnancy. However, it might not be reasonable to expect the redeployment of an agency worker to perform a task he or she was not hired to do in the first instance.

The question of who monitors the relationship is important. To test for equal treatment, a worker will make a local comparison. Difficulties in this regard might arise in respect of newly created positions and the determination of how the work function is deemed to be fulfilled. In the main, however, making comparisons will be reasonably easy and we can expect that workers will not be found wanting in making them. Has the directive been transposed elsewhere and how has this matter been addressed?

Where dispute resolution is required, the obvious action would be to approach the agency first. If this does not resolve it, a claim could be pursued with the Labour Relations Commission, LRC, the existing disputes resolution mechanism. However, I will make a different suggestion concerning a new advocacy role. Instead of approaching the LRC and waiting for a hearing to be held, someone should be given a new role, as part of which, for example, he or she would make a telephone call to deal early with and advise on a dispute. In this way, an offending person could be dealt with easily enough.

Regarding penalties and remedies, it is stated penalties should be effective, proportionate and dissuasive. This is a good and useful set of criteria.

A question arises as to whether the employer or the hirer is responsible for dealing with health and safety issues and risk assessments. This grey area may pose practical difficulties and will need to be monitored.

What if an agency acts in good faith on the basis of information provided by the hirer? Perhaps a standard provision addressing matters such as this could be included in commercial contracts.

I like the directive. It is progressive, simple in its layout, easy to read and likely to achieve its objectives of protecting agency workers, improving the quality of agency work and ensuring equal treatment. I look forward to discussing the legislation and hope there will be no major dilution because of the available derogations. I wish the Minister of State well in its introduction.