Protection of Employees (Temporary Agency Work) Act 2012

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Protection of Employees (Temporary Agency Work) Act 2012.

(2) Sections 2, 3, 4, 5, 6 (other than subsection (1)), 8, 9 and 13 (other than subsections (2) and (3)) shall be deemed to have come into operation on 5 December 2011.

(3) Subsection (1) of section 6 shall be deemed to have come into operation on 5 December 2011 in so far only as it relates to pay.

(4) Subsections (2) and (3) of section 13 and section 22 shall come into operation on the day immediately following the passing of this Act.

2.. Interpretation.

2.— (1) In this Act—

“Act of 1971” means the Employment Agency Act 1971;

“Act of 1997” means the Organisation of Working Time Act 1997;

“Act of 2000” means the National Minimum Wage Act 2000;

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;

“contract of employment” means—

(a) a contract of service, or

(b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“Directive” means Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, the text of which is set out in Schedule 1;

“employee” means a person who has entered into or works (or, where the employment has ceased, entered into or worked) under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

“Minister” means the Minister for Jobs, Enterprise and Innovation;

“overtime” means any hours worked in excess of normal working hours;

“pay” means—

(a) basic pay, and

(b) any pay in excess of basic pay in respect of—

(i) shift work,

(ii) piece work,

(iii) overtime,

(iv) unsocial hours worked, or

(v) hours worked on a Sunday,

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005;

“work” includes service, and references to the doing or carrying out of work include references to the provision or performance of a service;

“working hours” shall be construed in accordance with section 8 of the Act of 2000.

(2) A word or expression used in this Act that is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.

(3) For the purposes of this Act—

(a) a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed under a contract of employment by the State or Government, as the case may be, and

(b) an officer or servant of a local authority within the meaning of the Local Government Act 2001, a harbour authority F1[or the Health Service Executive or a member of staff of an education and training board] shall be deemed to be an employee employed under a contract of employment by that local authority, the Health Service Executive, that harbour authority or F1[that board], as the case may be.

(4) For the purposes of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of “contract of employment”, is liable to pay the wages of an individual in respect of work done by that individual shall be deemed to be the individual’s employer.

3.. Application of Act.

3.— This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

4.. Publicly funded work placement schemes, etc.

4.— This Act shall not apply to work carried out pursuant to a placement under—

(a) the work placement programme administered by An Foras Áiseanna Saothair,

(b) the scheme administered by An Foras Áiseanna Saothair known as the national internship scheme,

(c) any variation, extension or replacement of the programme referred to in paragraph (a) or scheme referred to in paragraph (b), or

(d) any vocational training, integration or retraining scheme or programme financed out of public moneys that the Minister may specify by order, after consultation with—

(i) such other Minister of the Government as he or she considers appropriate,

(ii) such bodies representative of employers as he or she considers appropriate, and

(iii) such bodies representative of employees as he or she considers appropriate.

5.. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Agency Workers

6.. Basic working and employment conditions of agency workers.

6.— (1) Subject to any collective agreement for the time being standing approved under section 8, an 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.

(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—

(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

(b) in respect of the period between assignments and subject to—

(i) Part 3 of the Act of 2000, and

(ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay,

the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.

(3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.

(4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section.

(5) In this section “permanent contract of employment” means a contract of employment of indefinite duration.

7.. Anti-avoidance.

7.— (1) (a) Assignments forming part of the same series of assignments shall, for the purposes of the determination of the basic working and employment conditions of an agency worker, be treated as a single assignment.

(b) For the avoidance of doubt, the period between the expiration of an assignment in a series of assignments and the commencement of the assignment immediately following it in the series shall not be taken into account in determining the basic working and employment conditions of an agency worker.

(2) For the purposes of this section, two or more assignments (in this subsection referred to as “relevant assignments”) constitute a series of assignments if—

(a) the hirer, in relation to a relevant assignment (other than the relevant assignment first occurring), is—

(i) the same person as the hirer in relation to the relevant assignment immediately preceding it, or

(ii) a person who is connected with the hirer referred to in subparagraph (i),

(b) in relation to each relevant assignment, the agency worker is the same person as the agency worker in relation to the other relevant assignments,

(c) in relation to the relevant assignments—

(i) the agency worker works in whole or in part at the same place of work, or

(ii) the agency worker’s work is directed and supervised from the same place (in circumstances where the agency worker works or is required to work at different locations),

and

(d) in relation to the relevant assignments, the agency worker does the same or similar work under the same or similar conditions, and any difference in the work done or the conditions under which it is done as between any relevant assignment and any other relevant assignment is of minor significance when viewed as a whole or occurs with such irregularity as not to be significant,

but shall not constitute such a series if the period between the commencement of any relevant assignment and the expiration of the immediately preceding relevant assignment exceeds 3 months.

(3) For the purposes of this section, a person is connected with another person if—

(a) in the case of an individual, he or she is—

(i) the spouse, child, parent, brother or sister of that individual, or

(ii) a business partner of that individual where the work to which the assignment concerned relates is carried out for the purposes of that business,

(b) in relation to a company or partnership, he or she is a person who exercises control (within the meaning of section 158 of the Corporation Tax Act 1976) of that company or partnership,

(c) in relation to a company he or she is—

(i) a company that is a holding company or subsidiary (within the meaning of section 155 of the Companies Act 1963) of the company first-mentioned in this paragraph, or

(ii) a company, the holding company (within the meaning of the said section 155) of which is also the holding company of the company first-mentioned in this paragraph.

8.. Certain collective agreements.

8.— (1) An agreement (in this section referred to as a “collective agreement”) may be made by or on behalf of an employer or hirer, or an association representing employers or hirers, on the one hand, and by or on behalf of a body or bodies representative of employees on the other hand providing for working and employment conditions that differ from the basic employment and working conditions applicable by virtue of section 6 as respects agency workers.

(2) The Labour Court may, upon the application by or on behalf of any of the parties to a collective agreement, approve that collective agreement.

(3) The Labour Court shall, upon receiving an application under this section, consult such representatives of employees and such representatives of employers as it considers are likely to have an interest in the matters to which the collective agreement concerned relates.

(4) The Labour Court shall not approve a collective agreement under this section unless the following conditions are fulfilled:

(a) the Labour Court is satisfied that it would be appropriate to approve the agreement having regard to paragraph 3 of Article 5 of the Directive;

(b) the agreement has been concluded in a manner usually employed in determining the pay or other conditions of employment of employees in the employment concerned;

(c) the body that negotiated the agreement on behalf of employees (or, in circumstances where the agreement was negotiated on behalf of employees by more than one body, each such body) is the holder of a negotiation licence under the Trade Union Act 1941, or is an excepted body within the meaning of that Act;

(d) the body or bodies that negotiated the agreement on behalf of employees is or are, in the opinion of the Labour Court, sufficiently representative of agency workers; and

(e) the agreement is in such form as appears to the Labour Court to be suitable for the purposes of its being approved under this section.

(5) Where the Labour Court is not satisfied that the condition referred to in paragraph (a) or (e) of subsection (4) is fulfilled but is satisfied that the other conditions referred to in that subsection are fulfilled, it may request the parties to the collective agreement concerned to vary the agreement in such manner as will result in the said condition being fulfilled and, where the agreement is so varied, the Labour Court shall approve the agreement as so varied.

(6) Where a collective agreement approved under this section is subsequently varied by the parties thereto, any of the said parties may apply to the Labour Court for approval by the Labour Court of the agreement as so varied under this section.

(7) The Labour Court may, if it is satisfied that there are substantial grounds for so doing, withdraw its approval of a collective agreement under this section.

(8) The Labour Court shall determine the procedures to be followed by—

(a) a person making an application under this section,

(b) the Labour Court in considering any such application or otherwise performing any of its functions under this section, and

(c) persons generally in relation to matters falling to be dealt with under this section.

(9) The Labour Court shall publish particulars of the procedures referred to in subsection (8) in such manner as it thinks fit.

(10) The Labour Court shall establish and maintain a register of collective agreements standing approved under this section and that register shall be made available for inspection by members of the public at all reasonable times.

9.. Restriction of certain enactments.

9.— The following provisions shall, in so far only as they are inconsistent with this Act, not apply to an agency worker to whom this Act applies:

(a) sections 7 and 8 of the Employment Equality Act 1998; and

(b) subsection (4) of section 7 of the Protection of Employees (Part-Time Work) Act 2001.

10.. Statement of terms of employment of agency workers.

10.— (1) The Act of 1994 is amended, in subsection (1) of section 1, by the substitution of the following definition for the definition of “contract of employment”:

“ ‘contract of employment’ means—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;”.

(2) The Minister may, for the purposes of the Act of 1994, make regulations that make provision in relation to the giving of information by hirers to employment agencies for the purposes of enabling employment agencies to comply with that Act.

(3) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(4) In this section “Act of 1994” means the Terms of Employment (Information) Act 1994.

11.. Access to employment by hirer.

11.— A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.

12.. Voidance of certain provisions.

12.— (1) Any provision of an agreement (whether a contract of employment or not, and whether made before, on or after the coming into operation of this Act) that purports to prohibit or restrict the conclusion by a hirer with an agency worker, assigned to work for that hirer, of a contract of employment after the assignment concerned has concluded shall be void.