Protection of Employees (Temporary Agency Work) Bill 2011 - Changes Agreed by the Seanad

The Protection of Employees (Temporary Agency Work) Bill 2011 was reviewed by the Seanad last Friday and the significant amendments which were proposed by the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD, were accepted by the Seanad.

Summary of Changes

The following is a brief summary of the main amendments agreed in the Seanad.

All references to comparators have been removed

The most significant amendment is the removal from the Bill of all references to a “comparable employee”.

The Bill previously required agency workers to receive the same “basic working and employment conditions” as “a comparable employee”.

That gave rise to a concern that, in some cases, agency workers would be able to claim rates of pay which could be higher than those which they would have received had they been recruited directly at the time of their assignment. This could have occurred, for example, where a “new hire” rate has been introduced which is lower than the rate which previously applied to new hires.

The new wording is as follows:

“… [a]n 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.”

The new wording means that an agency worker is entitled to the basic working and employment conditions which he or she would have been entitled if he or she had been hired directly to do the same or a similar job.

This may not be an exclusion of all cases where a hirer asserts that a “new hire” rate applies.

However, it allows a hirer who can genuinely demonstrate that agency workers would not have been hired on the old (higher) rate – but would have been hired on a new (lower) rate, possibly because of the economic situation – to apply the “new hire” rate to those agency workers.

In cases of dispute, it will be for a rights commissioner or the Labour Court to determine what a direct recruit would have been paid for doing the same or similar work, and thus what the agency worker should receive.

Anti-avoidance provision

A new anti-avoidance provision has been inserted into the Bill.

This will regulate situations where agency workers receive a series of assignments with the same hirer company with short breaks (of up to three months) between assignments.

The effect of the new provision is to aggregate the different periods of assignment.

This would be of relevance where a hirer operates an incremental scale of pay, whereby direct recruits receive a fixed pay rise after each year of service.

In such a case, where an agency worker is assigned to that hirer for a year; leaves for a month; and is re-assigned to that hirer; the agency worker would not start the second assignment on a “day one” basis but instead returns for the second assignment on the second point in the pay scale.

Overtime

“Overtime” has been included among the list of “basic working and employment conditions” (as well as in the definition of “pay”).

Enactment now likely by mid- to late-May

Because the Bill has been amended by the Seanad, it must return to the Dáil so that the amendments may be accepted. Once this occurs, it is likely that the Bill will be enacted by mid- to late-May.

Department Guide

The Department for Jobs, Enterprise and Innovation will provide a guide in due course explaining how the Department believes the Bill will operate in practice.