Richard Bruton (Dublin North Central, Fine Gael)

Section 7 is the core provision that outlines the entitlement to basic pay and working conditions for agency workers. It must be read in conjunction with section 3 which sets out the criteria for establishing a "comparable employee". The requirement in the directive is that agency workers should enjoy at least the same basic working conditions as someone recruited by the hirer to do the same job. As a concept this is rather nebulous but it is for us as legislators to build on the spirit and intent of the directive and provide more concrete solutions in legislation. Thus section 7, read in tandem with section 3, seeks to develop this concept to provide clarity for employment agencies and hirers alike. The relevant terms and conditions applicable to agency workers are those that are included in enactments, collective agreements or other arrangements that are generally applicable in respect of employees. This would include, for example, terms and conditions ordinarily found in contracts of employment of directly recruited employees of the hirer which are binding and generally in force in hirer undertakings.

During the passage of the Bill in the Dáil there was much discussion on this key aspect of the Bill. It is one that generates a great deal of concern. For this reason, I brought forward amendments to the Bill to clarify this aspect to the greatest possible extent in the legislation. I am satisfied that the Bill, as amended, provides this clarity. Section 7 builds on the spirit and intent of the directive and develops a practical solution around the concept of a comparable employee. The section provides for two separate and distinct possibilities.

The first of these in section 7(1)(a) provides for a situation where there is a comparable employee, and close regard must be had also to section 3 that defines the criteria for establishing a comparable employee. The criteria set down are very specific, cumulative and do not allow for a broad interpretation of a comparable employee. They require that the employer of the agency worker and the employee must be the same, the agency worker and the employee work at the same place and the work undertaken must be the same or similar in nature and carried out under the same or similar conditions that are effectively interchangeable. Finally, where it is a relevant factor also in the recruitment of direct employees, skills, qualifications and length of service are reckonable factors to be taken into account.

Separately, section 7(1)(b) provides for instances where there is no comparable employee, in which case the terms and conditions applicable will be the same as those to which a comparable employee would, if directly employed, be entitled. I am aware there are concerns around the issue of the possible selection of inappropriate comparators, for example, where a company has hired direct recruits on different occasions over a period and the fear that a challenge will be taken that a worker should be placed on more favourable rates that applied at an earlier point in time. As Senators will be aware, we have many instances in the civil and public service where new entrants are taken on under less favourable terms and conditions than those that previously applied and it is difficult to see how a successful challenge could be mounted in favour of the application of previous terms and conditions.

As in the case of section 7(1)(a), this provision also must be read in conjunction with section 3 of the Bill. A further amendment I brought forward in the Bill to assist with legal certainty on this issue is that contained at section 7(3), which provides effectively that in respect of agency workers on assignment prior to 5 December 2011, although the assignment may end after that date, the effective date for the purpose of establishing equal treatment is 5 December 2011.

Apart from the more substantive provisions of the Bill which I have just outlined in some detail, I will now refer to other notable provisions. Section 2 defines pay as basic pay, shift premium, piece rates, overtime premium, unsocial hours premium and Sunday premium. Pay does not extend to other aspects that are provided in recognition of the longer-term relationship between an employer and a permanent employee. There is no intention to include other elements that are not required by the directive such as pensions, sick pay, maternity top-up or benefit-in-kind. The legislation is being viewed in terms of the directive requirements. The latter are discretionary elements that are not, in the words of the directive, binding and generally applicable. Given current economic circumstances, now is not the time to in any way try to gilt edge conditions of employment when the creation of employment on a fair and equitable basis is what is needed.

Section 13prohibits the charging of work-seeking fees by employment agencies. Section 14provides that an agency worker is entitled to be treated no less favourably than a comparable employee with regard to access to collective facilities and amenities provided by the hirer to employees. These include canteen, workplace crèche or transport services. It provides that less favourable treatment in terms of access by agency workers to these facilities can only be justified if this is based on objective grounds.

Section 15outlines the relative responsibilities of the employment agency and the hirer, the obligations of both parties and the necessary flow of information to comply with the Bill. Subsection (2) is designed to allow the employment agency to be compensated in the event that the hirer fails to comply with the terms of subsection (1).

Sections 18 to 20, inclusive, meet the terms of Article 7 of the directive by providing that agency workers should be included in calculating the thresholds above which bodies representing workers are to be formed and in the thresholds for the establishment of representative bodies in the temporary work agency in respect of the information and consultation requirements of the various enactments on the issue. Sections 21 to 24, inclusive, include whistleblowing provisions that have been customised to take account of the unique three-way relationship that applies in the case of agency workers.

Section 25 provides for the manner in which complaints in respect of the contravention of provisions included in the legislation will be dealt with and must be read alongside Schedule 2 to the Bill. Schedule 2 contains standard complaints and redress provisions applicable and the procedures to be followed by the various parties where there is a breach of the right to equal treatment. The employment agency will be responsible for dealing with any breach of a right for which it is responsible such as liability in aspects other than access to employment notices, collective facilities and penalisation by the hirer. These aspects fall solely on the hirer as the agency has no role in this regard. The redress provisions in the Schedule are modelled on the provisions in existing employment protection legislation such as in respect of fixed-term work. I commend the Bill to the House.