This article is a follow on from our May 2012 e-zine 'Agency Directive Update' which introduced legislation to protect agency workers namely the Protection of Employees (Temporary Agency Work) Act, 2012 (the "2012 Act"). Essentially, the 2012 Act entitles agency workers to the same "basic working and employment conditions" as employees directly hired by the hirer.
The Department of Jobs, Enterprise and Innovation has since published, on 31 August, 2012, a 'Guidance' document on the 2012 Act. The purpose of the Guidance is to assist agency workers, hirers of agency workers, and employment agencies to understand better the provisions of the 2012 Act.
The 2012 Act does not apply to the following categories of persons:
Persons who work as independent contractors, are in business on their own account and are placed by an employment agency, where the hirer is a client or customer. Placement Services i.e. where the employment agency introduces a person to an employer for direct employment that is paid by the employer. Managed Service Contracts i.e. persons who work under the supervision and direction of the company which employs them and not under the supervision and direction of the company where they work. Collective Facilities
Section 14 of the 2012 Act provides that a hirer shall, in relation to collective facilities and amenities at work, treat an agency worker no less favourably than an employee of the hirer unless there are objective grounds to justify any less favourable treatment.
The Guidance provides that objective justification cannot be based on economic considerations, such as cost. However, practical and organisational considerations could be factors amounting to objective justification.
The Guidance also provides that, even where there is basis for objective justification, hirers should consider whether it is feasible to offer agency workers access to facilities on a partial basis, rather than excluding them all together. The Guidance expands on what might be considered "collective facilities and amenities". In addition to canteen (or other similar facilities), childcare facilities and transport services as provided for in the 2012 Act, the Guidance includes the following examples (which may be on-site or off-site):
Toilet/shower facilities; Staff common room/kitchen facilities; Food and drinks machines; and Car parking. The Guidance also provides that transport services might include, for example, local...