The Temporary Agency Work Directive, a bit of a ‘TAWD-ry mess!

1st December 2011

Text of Statement from Dept of Jobs, Enterprise & Innovation

You can access a copy of the Bill here

The Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD has this evening [Thursday 1st December 2011] written to employers’ representative bodies to confirm that legislation to transpose the EU Directive on Temporary Agency Work is being finalised in light of the conclusion – without agreement – of discussions between Social Partners on the possibility of agreeing a derogation under Article 5.4 of the Directive. This derogation could have provided a qualifying period before agency workers on relatively short term assignments would be entitled to the same basic pay and working conditions as if they were directly recruited.

These discussions have not yielded agreement on such a derogation, which is a matter of regret to the Minister. It is not open to the Government to legislate for a qualifying period, as this was a matter which was placed in the hands of the Social Partners under the terms of the Directive.

Accordingly, the Minister informed the representative bodies that the Directive will become effective on a “day 1” basis, with no lead-in or qualifying period. This means that with effect from 5th December, 2011 all temporary agency workers (c.35,000 workers or approximately 2% of the active workforce) assigned to a hirer are entitled to equal treatment in terms of basic working and employment conditions as if they had been directly recruited by the hirer in the same job. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as follows:

  • 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.

This is an exhaustive list in the Bill to be published. Other possible component elements of remuneration will not be included in the definition of pay for the purpose of equal treatment in the Bill, including for example:

  • Occupational Pension schemes
  • Financial participation schemes
  • Sick pay schemes
  • Benefit in kind
  • Bonus payments

The Bill will also provide for equal treatment of Temporary Agency Workers who fall within scope of the Directive in respect of the following:

  • Working time
  • Rest periods
  • Rest breaks
  • Night work
  • Annual leave
  • Public holidays

The Bill will also transpose the Directive’s provisions that temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of a hirer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and are to be informed about vacant posts.

The Minister said to the representative groups that Hirers and Agencies should make the appropriate arrangements to ensure that the principles of equal treatment as indicated above are put in place from 5thDecember, 2011 for all temporary agency workers, including those who are assigned on or after 5thDecember, 2011.