Protection of Employees Temporary Agency Workers Act 2012

An agency worker is a person who has an agreement with an agency to work for another person. The Protection of Employees (Temporary Agency Work) Act 2012 applies to agency workers employed by an employment agency who are temporarily assigned to work for, and under the supervision and direction of, another organisation (the hirer).

The Act does not cover employees of contractor companies and limited liability companies where the worker is the beneficial owner. The Act may also exclude those employed under a managed service contract, which is a contract for services, for example, cleaning, where the contractor is responsible for managing and delivering the service.

The Act does not apply to work done on the Work Placement Scheme, JobBridge or any publicly-funded vocational training or re-training scheme specified by the Minister for Jobs, Enterprise and Innovation.

Employment and working conditions covered by the Act are as follows:

Working time

This includes the duration of working time, rest periods, breaks, night work, annual leave and public holidays

Pay

This is defined as basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work. The definition of pay in the Act does not include occupational pension schemes, sick pay, bonuses, maternity pay or benefit in kind. The right to equal pay is backdated to 5 December 2011.

However, if the agency worker has a permanent contract with the agency and is paid between assignments, equal treatment as regards pay does not apply.

Access to facilities

Temporary agency workers must have equal access to facilities such as childcare, canteen and car parking. They also must have equal access to information about permanent employment opportunities.

Penalisation

An agency worker is protected against being victimised for reporting breaches of the Protection of Employees (Temporary Agency Work) Act 2012. This means that the hirer or the agency may not penalise an agency worker by dismissal, unfair treatment or an unfavourable change in their conditions of employment.

Agency workers also have certain rights under the following employment legislation:

• Unfair Dismissals Acts 1977 to 2007
• Redundancy Payments Acts 1967 to 2007
• Minimum Notice and Terms of Employment Acts 1973 to 2005
• Organisation of Working Time Act 1997
• Payment of Wages Act 1991
• Maternity Protection Acts 1994 and 2004
• Employment Equality Acts 1998-2011

It is important for the agency worker to know who is responsible for ensuring compliance with employment protection legislation – the agency or the firm for which he or she is working.

Under the unfair dismissals legislation, the employer is the person for whom the employee actually works rather than the agency. Compliance with health and safety requirements is also the responsibility of the person or organisation for whom the agency worker is actually working.

For the purposes of all other employment legislation, such as the Protection of Employees (Temporary Agency Work) Act 2012, the party liable to pay the wages of the employee (the employment agency or client company) will, normally, be considered to be the employer of the agency worker.

The Social Welfare (Miscellaneous Provisions) Act 2003 provides that the person who pays the wages is the employer for PRSI purposes.

Part-time agency workers

Under the Protection of Employees (Part-Time Work) Act 2001, a part-time agency worker can only compare himself or herself to a comparable full-time employee who is also an agency worker.