Deirdre Crowley highlights a significant development in recent days on the application of the EU Agency Work Directive in Irish law. This development sees rights extending to both private and public sector temporary agency workers as and from 5 December 2011. Private sector employers are advised to take particular note of these developments.
Public Notice
A public notice released by the Department of Jobs, Enterprise and Innovation (the “Department”) on 4 and 5 December last states that all temporary agency workers are entitled from 5 December to equal treatment in basic employment conditions in the same way as if directly recruited by the hirer to the same job ( http://www.djei.ie/publications/employment/2011/AgencyNotice.pdf ). According to department officials, Minister Bruton’s position is based on legal advice received from the Office of the Attorney General.
This means that private sector employers face the very real possibility of liability and exposure arising in respect of the manner in which agency workers are engaged as and from 5 December 2011. Government officials have further confirmed that legislation introduced in early 2012 will have retrospective effect on all employees in both the public and private sectors from 5 December 2011.
An Unprecedented Move
While it is a matter for each member state to decide on the manner in which a Directive is transposed into national law (Article 288 Treaty on the Functioning of the European Union), it is an unprecedented move that a Directive is considered to apply to the private sector where no national legislation has been introduced in the area to transpose the Directive.
The doctrine of Direct Effect means that if a member state fails to implement an EU Directive into Irish law by the specified deadline, the Directive automatically has “direct effect” in national law. Up until now, public sector employers only, as emanations of the State, have been said to be subject to the doctrine of Direct Effect. In this way a public sector employee could sue the State for failing to implement the Directive by the deadline date. It is difficult to see how an agency worker in the private sector would be able to sue his or her employer for not implementing the Directive where there is no national legislation on the issue.
In this instance, we see the Department issuing a notice which serves to notify the public that the Directive applies to both the private and public sectors. While this move is unprecedented, it could be said that the move is arguably not unlawful and may be permitted under Article 288 of the Treaty on the Functioning of the European Union. It does however leave the implementation process and any incoming legislation open to constitutional challenge if, as the Government has indicated, the Directive is applicable to the private sector from 5 December and not the date of any newly enacted legislation.
Scope of Bill
The Department has stated that it will publish a Bill on or before 16 December next and that we can expect enactment of the Bill by early January. While we do not have Heads of a Bill to rely on at this point, a press release from the Department indicates the following (http://www.djei.ie/press/2011/20111201.htm ):
No Qualifying Period- The Government failed to agree with the Social Partners on a derogation under which agency workers would have to work in a company for a certain period of time before becoming entitled to the rights under the Directive. This is in contrast with the UK which has a 12 week qualifying period before equal treatment rights apply.
The current position is that agency workers are entitled to equal treatment with their permanent colleagues from the first day of employment in the organisation.
Who will it apply to? – There is uncertainty over whether the Directive applies to existing agency workers as well as to those taken on in the future. The press release from the Department further states that appropriate arrangements should be put in place from 5 December for all temporary agency workers and that this includes those who are assigned on or after 5 December. Other reports indicate however that the measures may also apply to existing agency workers and in this respect the legislation would certainly raise concerns over the retrospective nature of the provisions. IBEC has raised its own concerns arguing that this would raise serious constitutional questions.
Scope - Equal treatment under the Directive will apply to the following areas:
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- Working time
- Rest periods
- Rest breaks
- Night work
- Annual leave
- Public holidays
Pay – There has been much debate on what constitutes “pay” in terms of equal treatment under the Directive. It includes:
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- Basic pay
- Shift premium
- Piece rates
- Overtime premium
- Unsocial hours premium
- Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee
What is excluded? - The Government has indicated that the following aspects of the employment relationship will not require equal treatment:
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- Occupational pension schemes
- Financial participation schemes
- Sick pay schemes
- Benefit in kind
- Bonus payments
We await the detail in the published Bill which is expected to be released sometime next week. No doubt the Budget will take priority in terms of debate and new legislation going through the Houses of the Oireachtas, but given the possible legal exposure for employers as and from 5 December, it is imperative that the Government provides urgent and immediate clarification on the issue. In the interim, private sector employers should undertake a full audit of existing agency arrangements in place.
This article is a general summary on the subject and is not intended to be a thorough review or as a complete statement of the law. Specific legal advice should be sought on a case by case basis.
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For further information and employment law advice cork, contact Deirdre Crowley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . You can also contact Deirdre on +353 21 4289 560.
