An agency worker is a person who has an agreement with an agency to work for another person. For example, a secretary may have an agreement with a secretarial agency to do work for an office while one of their employees is on leave. While agency workers do not have all the same employment rights as regular workers, under the EU Directive on Temporary Agency Work (see below) they have the right to equal treatment in basic working and employment conditions. The Protection of Employees (Temporary Agency Work) Act 2012 (pdf) transposing this Directive into Irish legislation was signed into law on 16 May 2012. It provides for the equal treatment for temporary agency workers as described below and defines pay for the purposes of legislation including basic pay, overtime premium and Sunday premium.
Agency workers also have certain rights under the following employment legislation:
It is important for the agency worker to know who is responsible for ensuring compliance with employment protection legislation - the agency or the firm for which he or she is working.
This depends on which rights the agency worker is seeking to enforce. Under the unfair dismissals legislation, the employer is the person for whom the employee actually works rather than the agency.
Compliance with health and safety requirements is also the responsibility of the person or organisation for whom the agency worker is actually working.
For the purposes of all other employment legislation, such as redundancy payments, the party liable to pay the wages of the employee (the employment agency or client company) will, normally, be considered to be the employer of the agency worker.
The Social Welfare (Miscellaneous Provisions) Act 2003 clarifies the social insurance position of agency workers. It provides that agency workers are insurably employed and the person who pays the wages is the employer for PRSI purposes.
Under the Protection of Employees (Part-Time Work) Act 2001, a part-time agency worker can only compare himself or herself to a comparable full-time employee who is also an agency worker.
The Protection of Employees (Fixed-Term Work) Act 2003 applies to most employees on fixed-term contracts. However, it does not apply to agency workers.
The EU Directive on Temporary Agency Work 2008/104/EC (pdf) came into effect on 5 December 2011. It provides that all temporary agency workers must have equal treatment with regular workers from their first day at work in respect of:
Temporary agency workers must also have equal access to facilities such as childcare and must be informed of permanent employment opportunities.
Currently, employment agencies in Ireland are regulated by the Employment Agency Act 1971. The Employment Agency Regulation Bill 2009 (pdf) was intended to replace the 1971 Act and strengthen the regulation of employment agencies. It proposed that employment agencies established in Ireland must have a licence granted by the Minister for Jobs, Enterprise and Innovation to operate in Ireland. Employment agencies based outside Ireland would also be required to have such a licence unless they were already licensed in another EEA country.
The Bill’s proposals included:
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