Agency Workers

Agency Workers

Agency workers are persons who are contracted with an employment agency and who are made available to an employer from time to time.  Their contract is not with the employer but with the agency.  The employer pays the agency for the services provided. The courts may decide in the particular circumstances, that there is in substance, an employment relationship between the employer and agency worker.

An “employment agency” is any entity or person engaged in an economic activity which employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, another person or entity. A person who provides employees may be deemed to be an employment agency under the legislation, although he / it is not a formal licensed employment agency

In the last 10 years, significant protections have been extended to agency workers, arising principally from an EU Directive.  It may not be possible to distinguish between the functions and apparent roles of an employee and that of a fellow temporary agency worker. However, provided that the contracts clearly define the position and are not a sham, then effect will be given to the contractual terms.


Implication of a Direct Contract

The courts have been willing in some cases, to imply a contract between the agency worker and the business owner.  This contract might be neither a contract of service nor a contract for services. The purpose of this approach was to seek to mitigate the (former) absence of statutory rights.

In considering whether it is possible to imply a contract between the agency worker and the business, the courts have regard to the following factors:

·        Is there mutuality of obligations?

·        Is there an umbrella or a global contract covering non-working periods?

·        Can the business insist on the use of a particular agency worker?

·        Do the agency arrangements reflect the reality of the position?

·        Is the business paying for services provided by the agency?

The passage of time does not, by itself establish a contract between the business and worker.


General Statutory Protections

Much of the key employment legislation contains definitions which protect agency workers as if they were employees. This includes redundancy payments, payment of wages, maternity protection, parental leave, national minimum wage and the transfer of undertakings regulations. The particular legislation must be examined to ascertain, against whom the recourse may be.  It may depend on the terms of the various contractual relationships collectively.

The Protection of Employees (Part-Time Work) Act, deems a contract of employment to include a contract whereby an individual agrees with an employment agency to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract).

The employer is deemed to be the person who is liable to pay the wages of the individual concerned in respect of the work or service concerned. Accordingly, it will depend on the circumstances as to whether the agency or the hiring company is deemed, employer.

An employment agency shall not charge an individual a fee in relation to introducing that individual to another person for the purpose of his/her employment by that other.  This is not to prevent an employment agency from charging a fee in respect of reasonable expenses incurred on the provision of training necessary.


Terms of Employment and Dismissal

The Terms of employment legislation applies so that a statement of written terms must be given after four weeks.  Agency workers are within the scope of the Terms of Employment (Information). They are entitled to be provided with information on their terms and conditions of employment. They may obtain it from the hiring organisation, who must furnish it. It is to be equivalent to that which would be available to a comparable employee.

The legislation provides that a contract of employment includes an agency-type relationship.  The employer is defined as the person who pays the salary. This is usually the employer, which contrasts with the  position under the unfair dismissals legislation.

The Unfair Dismissals Act, 1993 provides that temporary workers placed by registered agencies may bring an unfair dismissal claim, against the business with whom they are placed. The agency worker is deemed to be employed by the business concerned for the purpose of unfair dismissal legislation. The employer must treat the agency worker as if he were the employee.

There must be a contract for a year, which may be a difficult to find in practice in many cases.

Fair procedures, in the context of grievance and disciplinary procedures, may not be available to them, although the position is arguable.  Fair procedures for termination may be required, subject to the qualification period.


Equality and Safety Issues

Employment equality legislation covers persons who perform services for another while working for an employment agency. The provider of the work is deemed to be an employer. Another agency worker may be used as the comparator for equal pay purposes.

A provider of agency work may not discriminate against an agency worker in the conditions of employment, training or experience and access to employment promotion. It is not discrimination by the agency or the employer, unless the agency worker is treated less favourably than another agency worker is, or would have been treated. Indirect discrimination against agency workers is also prohibited.

An agency worker is deemed an employee of the hiring business for the purpose of health, safety and welfare legislation.


Statutory Protection of Agency Workers

The Protection of Employees (Temporary Agency Work) Act 2012, applies to an agency worker who is temporarily assigned by an employment agency to work for or under the direction of a business who hires him.  It applies to an agency worker which means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

The legislation applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer. The legislation does not apply to self-employed persons.  Agency workers who have a permanent contract with the agency are not covered by the legislation.

An agency is any person or corporate, who provides employment agency services, which is required to be registered as such.  A hirer is a business for which and under the direction and supervision of which an agency worker carries out work pursuant to an agreement, whether in writing or not, with an employment agency, for whom the agency worker is employed.


General Statutory Protection

The basic working terms and conditions applicable under collective agreements, legislation and arrangements that are applicable generally in respect of the employees of the hirer relating to pay, working time, rest periods, breaks, night work, overtime, public holidays and annual leave, apply to the agency worker. Under the Directive, states may specify whether occupational pension scheme, sick pay and other equivalent schemes are also covered.

Agency workers are entitled to the same basic working and employment conditions that they would have been entitled to if they were hired under a contract of employment to do the same or similar work. If there is no employee doing similar work, a hypothetical comparator must be used.  The comparator for the purpose of equal pay and equal treatment is another agency worker.

The agency worker may compare himself with other employees of the hirer in relation to basic working conditions and collective facilities.  This does not apply if the agency worker is retained under a full-time employment contract (with the agency).


Exemption from Statutory Protection

There is an exemption in relation to public and publicly funded programs, which are designed to facilitate the integration and reintegration of persons, who have encountered difficulties in entering or re-entering the labour market. The legislation does not apply to work carried out pursuant to a placement under statutory work placement programme, internship schemes, and any vocational training, integration or retraining scheme or programme financed out of public money.

The equality protections do not apply to agency workers employed by an employment agency under a permanent contract of employment.  It is on condition that in the period between assignments that he/she has to be paid by the employment agency,  an amount equal to not less than half the pay to which he/she would have been entitled in respect of his most recent assignment.

An agency worker who is employed under a full-time contract is to be paid between assignments an amount equal to not less than half of the pay, to which he would be entitled, in respect of the most recent assignment.  This amount is not to be less than the national minimum wage or the amount set in a collective agreement, including a registered employment agreement or an employment regulation order.

Prior to entering a contract of employment, the agency worker must be notified in writing, that the rate of pay which he may receive will not be the same as if he was placed directly with the hiring business.


Anti-Avoidance Provisions

The Directive requires states to take steps to prevent avoidance of the above provisions.  Prior assignments are part of a series of assignments for the purpose of deciding basic working terms and conditions. They are to be treated as a single assignment.  Two or more assignments may constitute a single assignment if they are with the same person or if the agency worker works in the same place (or is directed from the same place) involving the same or similar work or work with a minor difference only.  There may not be a break of more than three months between assignments for this purpose.

Any provision of an agreement (whether a contract of employment or not, that purports to prohibit or restrict the conclusion by a hirer with an agency worker, assigned to work for that hirer, of a contract of employment after the assignment concerned has concluded shall be void.

This does not operate to prevent an employment agency from obtaining reasonable recompense from a hirer for services rendered by the employment agency to the hirer in respect of the recruitment, training and assignment of an agency worker who is subsequently employed by the hirer under a contract of service


Collective Agreement

The social partners may develop collective agreements at the sectoral or enterprise level to establish arrangements which deviate from the working and employment conditions of agency workers, provided that they are appropriately balanced to ensure the overall protection of agency workers.

Collective agreements may be made between hirers or association of hirers/employers and bodies or representatives of employees providing agency services.  They may apply to the Labour Court for approval of the agreement.  The Labour Court is to consult with representatives of hirers and agency workers.  The collective agreement may be approved, only if it is in accordance with the Directive.

The negotiating body must be a trade union with a negotiation licence or must be an excepted body.  The agreement must be in form and terms acceptable to the Labour Court.  There is provision for variation of the agreement.  The Labour Court may decide whether or not to register such agreements.


Employment Opportunities

There are provisions which seek to assist agency workers to gain access to permanent employment. Agency workers are to be informed of any vacant positions in the hirer business and are to have the same opportunity for permanent employment, as employees.  A general announcement in the workplace may suffice.  The hirer is to inform agency workers assigned to work for it, in respect of whom there is a vacant position.

Terms in the agreement between the agency worker and the agency, prohibiting or having the effect of preventing an employment contract between the hirer and the agency worker are to be void.  This is not to prevent agencies from receiving a reasonable level of recompense from a hirer for services rendered by the employment agency to the hirer in respect of the recruitment, training and assignment of an agency worker who is subsequently employed by the hirer under a contract of employment.


Training and Facilities

Agency workers are to have access to the amenities and collective facilities of the business concerned.  This is to include canteen, childcare and transport services.  They are to have the access under the same conditions as direct employees unless there is an objective basis for the differentiation.

Suitable measures are to be taken to improve temporary agency worker’s access to training and childcare facilities in order to enhance employability and career prospects and to improve their access to training.

Agency workers are included in calculating the thresholds of employee numbers at which bodies representing workers are to be formed. They are to be included in the thresholds for the establishment of representative bodies in relation to statutory information and consultation requirements. They are deemed to be workers for the purpose of representation.

The hirer must provide suitable information on the use of temporary agency workers in the context of its general consultation and information requirements.  Agency workers are generally included for the purpose of the information and consultation provisions.


Hirer to Assist

It is the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under the legislation in relation to the agency worker.

Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency, and the contravention is attributable to the failure by the hirer of the agency worker to comply with the obligation, the hirer must indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.


Enforcement

There is provision for complaints and redress in respect of breach of the equal treatment rights.

The breach of legislation may be the subject of a complaint to the WRC.  The complaint may be brought within six months subject to an extension to 12 months.

There is provision aimed at preventing penalisation and victimisation in respect of the breaches of the legislation.  The hirer may not penalise or threaten to penalise an agency worker in this context.

Provision is made for redress in respect of victimisation for invocation of rights. There are standard provisions for whistleblowing.

The agency is liable for a breach of rights for which they are responsible.  The liability in relation to access to employment notices and collective facilities falls solely on the hirer, and the agency has no function.  The employment agency has a defence to action if it has taken reasonable steps to obtain the necessary information from the hirer.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch.5

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/


 

Protection of Employees (Temporary Agency Work) Act 2012

AN ACT TO GIVE EFFECT TO DIRECTIVE 2008/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19 NOVEMBER 2008 1 ON TEMPORARY AGENCY WORK; FOR THAT PURPOSE TO AMEND CERTAIN ENACTMENTS; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.

[16th May, 2012]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and Interperation

Short title and commencement.

1.— (1) This Act may be cited as the Protection of Employees (Temporary Agency Work) Act 2012.

(2) Sections 2 , 3 , 4 , 5 , 6 (other than subsection (1)), 8 , 9 and 13 (other than subsections (2) and (3)) shall be deemed to have come into operation on 5 December 2011.

(3) Subsection (1) of section 6 shall be deemed to have come into operation on 5 December 2011 in so far only as it relates to pay.

(4) Subsections (2) and (3) of section 13 and section 22 shall come into operation on the day immediately following the passing of this Act.

Interpretation.

2.— (1) In this Act—

“Act of 1971” means the Employment Agency Act 1971 ;

“Act of 1997” means the Organisation of Working Time Act 1997 ;

“Act of 2000” means the National Minimum Wage Act 2000 ;

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;

“contract of employment” means—

(a) a contract of service, or

(b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“Directive” means Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, the text of which is set out in Schedule 1 ;

“employee” means a person who has entered into or works (or, where the employment has ceased, entered into or worked) under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“enactment” has the same meaning as it has in the Interpretation Act 2005 ;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

“Minister” means the Minister for Jobs, Enterprise and Innovation;

“overtime” means any hours worked in excess of normal working hours;

“pay” means—

(a) basic pay, and

(b) any pay in excess of basic pay in respect of—

(i) shift work,

(ii) piece work,

(iii) overtime,

(iv) unsocial hours worked, or

(v) hours worked on a Sunday,

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005 ;

“work” includes service, and references to the doing or carrying out of work include references to the provision or performance of a service;

“working hours” shall be construed in accordance with section 8 of the Act of 2000.

(2) A word or expression used in this Act that is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.

(3) For the purposes of this Act—

(a) a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) shall be deemed to be an employee employed under a contract of employment by the State or Government, as the case may be, and

(b) an officer or servant of a local authority within the meaning of the Local Government Act 2001 , a harbour authority, the Health Service Executive or a vocational education committee shall be deemed to be an employee employed under a contract of employment by that local authority, the Health Service Executive, that harbour authority or that committee, as the case may be.

(4) For the purposes of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of “contract of employment”, is liable to pay the wages of an individual in respect of work done by that individual shall be deemed to be the individual’s employer.


Application of Act.

3.— This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

Publicly funded work placement schemes, etc.

4.— This Act shall not apply to work carried out pursuant to a placement under—

(a) the work placement programme administered by An Foras Áiseanna Saothair,

(b) the scheme administered by An Foras Áiseanna Saothair known as the national internship scheme,

(c) any variation, extension or replacement of the programme referred to in paragraph (a) or scheme referred to in paragraph (b), or

(d) any vocational training, integration or retraining scheme or programme financed out of public moneys that the Minister may specify by order, after consultation with—

(i) such other Minister of the Government as he or she considers appropriate,

(ii) such bodies representative of employers as he or she considers appropriate, and

(iii) such bodies representative of employees as he or she considers appropriate.

Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2

Agency Workers


Basic working and employment conditions of agency workers.

6.— (1) Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—

(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

(b) in respect of the period between assignments and subject to—

(i) Part 3 of the Act of 2000, and

(ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay,

the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.

(3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.

(4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section.

(5) In this section “permanent contract of employment” means a contract of employment of indefinite duration.


Anti-avoidance.

7.— (1) (a) Assignments forming part of the same series of assignments shall, for the purposes of the determination of the basic working and employment conditions of an agency worker, be treated as a single assignment.

(b) For the avoidance of doubt, the period between the expiration of an assignment in a series of assignments and the commencement of the assignment immediately following it in the series shall not be taken into account in determining the basic working and employment conditions of an agency worker.

(2) For the purposes of this section, two or more assignments (in this subsection referred to as “relevant assignments”) constitute a series of assignments if—

(a) the hirer, in relation to a relevant assignment (other than the relevant assignment first occurring), is—

(i) the same person as the hirer in relation to the relevant assignment immediately preceding it, or

(ii) a person who is connected with the hirer referred to in subparagraph (i),

(b) in relation to each relevant assignment, the agency worker is the same person as the agency worker in relation to the other relevant assignments,

(c) in relation to the relevant assignments—

(i) the agency worker works in whole or in part at the same place of work, or

(ii) the agency worker’s work is directed and supervised from the same place (in circumstances where the agency worker works or is required to work at different locations),

and

(d) in relation to the relevant assignments, the agency worker does the same or similar work under the same or similar conditions, and any difference in the work done or the conditions under which it is done as between any relevant assignment and any other relevant assignment is of minor significance when viewed as a whole or occurs with such irregularity as not to be significant,

but shall not constitute such a series if the period between the commencement of any relevant assignment and the expiration of the immediately preceding relevant assignment exceeds 3 months.

(3) For the purposes of this section, a person is connected with another person if—

(a) in the case of an individual, he or she is—

(i) the spouse, child, parent, brother or sister of that individual, or

(ii) a business partner of that individual where the work to which the assignment concerned relates is carried out for the purposes of that business,

(b) in relation to a company or partnership, he or she is a person who exercises control (within the meaning of section 158 of the Corporation Tax Act 1976 ) of that company or partnership,

(c) in relation to a company he or she is—

(i) a company that is a holding company or subsidiary (within the meaning of section 155 of the Companies Act 1963 ) of the company first-mentioned in this paragraph, or

(ii) a company, the holding company (within the meaning of the said section 155) of which is also the holding company of the company first-mentioned in this paragraph.


Certain collective agreements.

8.— (1) An agreement (in this section referred to as a “collective agreement”) may be made by or on behalf of an employer or hirer, or an association representing employers or hirers, on the one hand, and by or on behalf of a body or bodies representative of employees on the other hand providing for working and employment conditions that differ from the basic employment and working conditions applicable by virtue of section 6 as respects agency workers.

(2) The Labour Court may, upon the application by or on behalf of any of the parties to a collective agreement, approve that collective agreement.

(3) The Labour Court shall, upon receiving an application under this section, consult such representatives of employees and such representatives of employers as it considers are likely to have an interest in the matters to which the collective agreement concerned relates.

(4) The Labour Court shall not approve a collective agreement under this section unless the following conditions are fulfilled:

(a) the Labour Court is satisfied that it would be appropriate to approve the agreement having regard to paragraph 3 of Article 5 of the Directive;

(b) the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned;

(c) the body that negotiated the agreement on behalf of employees (or, in circumstances where the agreement was negotiated on behalf of employees by more than one body, each such body) is the holder of a negotiation licence under the Trade Union Act 1941 , or is an excepted body within the meaning of that Act;

(d) the body or bodies that negotiated the agreement on behalf of employees is or are, in the opinion of the Labour Court, sufficiently representative of agency workers; and

(e) the agreement is in such form as appears to the Labour Court to be suitable for the purposes of its being approved under this section.

(5) Where the Labour Court is not satisfied that the condition referred to in paragraph (a) or (e) of subsection (4) is fulfilled but is satisfied that the other conditions referred to in that subsection are fulfilled, it may request the parties to the collective agreement concerned to vary the agreement in such manner as will result in the said condition being fulfilled and, where the agreement is so varied, the Labour Court shall approve the agreement as so varied.

(6) Where a collective agreement approved under this section is subsequently varied by the parties thereto, any of the said parties may apply to the Labour Court for approval by the Labour Court of the agreement as so varied under this section.

(7) The Labour Court may, if it is satisfied that there are substantial grounds for so doing, withdraw its approval of a collective agreement under this section.

(8) The Labour Court shall determine the procedures to be followed by—

(a) a person making an application under this section,

(b) the Labour Court in considering any such application or otherwise performing any of its functions under this section, and

(c) persons generally in relation to matters falling to be dealt with under this section.

(9) The Labour Court shall publish particulars of the procedures referred to in subsection (8) in such manner as it thinks fit.

(10) The Labour Court shall establish and maintain a register of collective agreements standing approved under this section and that register shall be made available for inspection by members of the public at all reasonable times.


Restriction of certain enactments.

9.— The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:

(a) sections 7 and 8 of the Employment Equality Act 1998 ; and

(b) subsection (4) of section 7 of the Protection of Employees (Part-Time Work) Act 2001 .


Statement of terms of employment of agency workers.

10.— (1) The Act of 1994 is amended, in subsection (1) of section 1, by the substitution of the following definition for the definition of “contract of employment”:

“ ‘contract of employment’ means—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;”.

(2) The Minister may, for the purposes of the Act of 1994, make regulations that make provision in relation to the giving of information by hirers to employment agencies for the purposes of enabling employment agencies to comply with that Act.

(3) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(4) In this section “Act of 1994” means the Terms of Employment (Information) Act 1994 .


Access to employment by hirer.

11.— A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.


Voidance of certain provisions.

12.— (1) Any provision of an agreement (whether a contract of employment or not, and whether made before, on or after the coming into operation of this Act) that purports to prohibit or restrict the conclusion by a hirer with an agency worker, assigned to work for that hirer, of a contract of employment after the assignment concerned has concluded shall be void.

(2) Subsection (1) shall not operate to prevent an employment agency from obtaining reasonable recompense from a hirer for services rendered by the employment agency to the hirer in respect of the recruitment, training and assignment of an agency worker who is subsequently employed by the hirer under a contract of employment.


Offence to charge fees to certain individuals.

13.— (1) An employment agency shall not charge an individual a fee in respect of the making of any arrangement for the purpose of that individual’s being employed, subsequent to the conclusion of his or her assignment with a hirer, under a contract of employment with that hirer.

(2) A person who contravenes this section shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine.

(3) Summary proceedings for an offence under this section may be brought and prosecuted by the Minister.

(4) This section is in addition to, and not in substitution for, subsection (2) of section 7 of the Act of 1971.


Obligations of hirers to agency workers.

14.— (1) A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker.

(2) In this section “collective facilities and amenities” includes—

(a) canteen or other similar facilities,

(b) child care facilities, and

(c) transport services.


Duty of hirer to provide information to employment agency.

15.— (1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker.

(2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.

PART 3


Amendment of Enactments

Amendment of Employment Agency Act 1971.

16.— The Act of 1971 is amended by the insertion of the following definition in subsection (1) of section 1:

“ ‘employment agency’ includes an employment agency within the meaning of the Protection of Employees (Temporary Agency Work) Act 2012;”.

Amendment of section 10 of Protection of Employment Act 1977.

17.— Section 10 of the Protection of Employment Act 1977 is amended, in subsection (2) (amended by Article 9 of the Protection of Employment Order 1996 ( S.I. No. 370 of 1996 )), by the insertion of the following paragraph:

“(cc) (i) the number (if any) of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies engaged to work for the employer,

(ii) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(iii) the type of work that those agency workers are engaged to do,

and”.

Amendment of section 3 of Transnational Information and Consultation of Employees Act 1996.

18.— Section 3 of the Transnational Information and Consultation of Employees Act 1996 (amended by the European Communities ( Transnational Information and Consultation of Employees Act 1996 (Amendment) Regulations 2011 ( S.I. No. 380 of 2011 )) is amended by—

(a) the insertion of the following definitions in subsection (1):

“ ‘agency worker’ means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;

‘relevant information’ means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;”,

(b) the insertion, in paragraph (a) of subsection (1A), of “(including relevant information)” after “data”, and

(c) the insertion of the following subsection:

“(1B) For the purposes of this Act, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned and, accordingly, references in this Act to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.”.

Amendment of Employees (Provision of Information and Consultation) Act 2006.

19.— The Employees (Provision of Information and Consultation) Act 2006 is amended—

(a) in section 1, by—

(i) the insertion of the following definitions in subsection (1):

“ ‘agency worker’ means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;

‘relevant information’ means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;”,

and

(ii) the insertion of the following subsection:

“(1A) For the purposes of this Act, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned, and accordingly references in this Act to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.”,

and

(b) in section 8, by the insertion of “(including relevant information)” after “information” in paragraph (b) of subsection (5).

Amendment of certain statutory instruments.

20.— (1) Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( S.I. No. 131 of 2003 ) is amended by the insertion of the following paragraph:

“(1A) The transferor and transferee concerned shall include, with the information being provided under paragraph (1), information as respects—

(a) the number of agency workers temporarily engaged in the undertaking concerned,

(b) those parts of the undertaking in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do.”.

(2) The European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006 ( S.I. No. 623 of 2006 ) are amended—

(a) in Regulation 2, by—

(i) the insertion of the following definitions in paragraph (1):

“ ‘agency worker’ means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;

‘relevant information’ means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;”,

and

(ii) the insertion of the following paragraphs:

“(1A) References in these Regulations to information shall include references to relevant information.

(1B) For the purposes of these Regulations, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned, and accordingly references in these Regulations to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.”,

and

(b) in paragraph 11 of Schedule 1, by the insertion of the following paragraph:

“(5) The following matters shall also be the subject of discussion at the meeting:

(a) the number of agency workers temporarily engaged to work for the employer;

(b) those parts of the employer’s enterprise in which those agency workers are, for the time being, working; and

(c) the type of work that those agency workers are engaged to do.”.

(3) The European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 ( S.I. No. 259 of 2007 ) are amended—

(a) in Regulation 2, by—

(i) the insertion of the following definitions in paragraph (1):

“ ‘agency worker’ means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;

‘relevant information’ means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;”,

and

(ii) the insertion of the following paragraphs:

“(1A) References in these Regulations to information shall include references to relevant information.

(1B) For the purposes of these Regulations, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned, and accordingly references in these Regulations to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.”,

and

(b) in paragraph 12 of Schedule 1, by the insertion of the following paragraph:

“(5) The following matters shall also be the subject of discussion at the meeting:

(a) the number of agency workers temporarily engaged to work for the employer;

(b) those parts of the employer’s enterprise in which those agency workers are, for the time being, working; and

(c) the type of work that those agency workers are engaged to do.”.

(4) The European Communities (Cross-Border Mergers) Regulations 2008 ( S.I. No. 157 of 2008 ) are amended—

(a) in Regulation 2, by—

(i) the insertion of the following definitions in paragraph (1)—

“ ‘agency worker’ means an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies;

‘relevant information’ means information as respects—

(a) the number of agency workers temporarily engaged to work for the employer,

(b) those parts of the employer’s business in which those agency workers are, for the time being, working, and

(c) the type of work that those agency workers are engaged to do;”,

and

(ii) the insertion of the following paragraph:

“(3) For the purposes of these Regulations, an agency worker to whom the Protection of Employees (Temporary Agency Work) Act 2012 applies shall, for the duration of the agency worker’s assignment with a hirer (within the meaning of that Act), be treated as being employed by the employment agency concerned, and accordingly references in these Regulations to contract of employment shall, as respects any such agency worker, be construed as including references to contract of employment within the meaning of that Act.”,

(b) the insertion, in paragraph (2) of Regulation 5, of the following subparagraph:

“(ii) all relevant information in relation to each of the merging companies,”,

(c) the insertion, in the definition of “information” in Regulation 22, of “(including relevant information)” after “content”, and

(d) in paragraph 11 of Schedule 1, by the insertion of the following paragraph:

“(5) The following matters shall also be the subject of discussion at the meeting:

(a) the number of agency workers temporarily engaged to work for the employer;

(b) those parts of the employer’s enterprise in which those agency workers are, for the time being, working; and

(c) the type of work that those agency workers are engaged to do.”.

PART 4


Protection of Employees and Redress

Protection for persons who report breaches of Act.

21.— Where a person communicates his or her opinion, whether in writing or otherwise, to a member of the Garda Síochána or the Minister that—

(a) an offence under this Act has been or is being committed, or

(b) any provision of this Act has been contravened,

then, unless the person acts in bad faith, he or she shall not be regarded as having committed any breach of duty towards any other person, and no person shall have a cause of action against the first-mentioned person in respect of that communication.


False statements.

22.— (1) A person who states to the Minister or a member of the Garda Síochána that—

(a) an offence under this Act has been or is being committed, or

(b) any provision of this Act has been or is being contravened,

knowing that statement to be false shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.


Prohibition on penalisation by employer.

23.— (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened,

(d) giving evidence in any proceedings under this Act, or

(e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts.

(3) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.


Prohibition on penalisation by hirer.

24.— (1) A hirer shall not penalise or threaten penalisation of an agency worker for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened,

(d) giving evidence in any proceedings under this Act, or

(e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) If a penalisation of an agency worker, in contravention of subsection (1), constitutes a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the agency worker in respect of that penalisation both under Schedule 2 and under those Acts.

(3) In this section “penalisation” means any act or omission by a hirer or a person acting on behalf of a hirer that affects an agency worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension or dismissal (within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension or such dismissal,

(b) loss of opportunity to apply for a position of employment with the hirer,

(c) transfer of duties, change of location of place of work or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.