An agency worker is a person who has an agreement with an agency to work for another person. For example, a secretary may have an agreement with a secretarial agency to do work for an office while one of their employees is on leave. While agency workers do not have all the same employment rights as regular workers, under the EU Directive on Temporary Agency Work (see below) temporary agency workers have the right to equal treatment in basic working and employment conditions. This Directive was transposed into Irish legislation by the Protection of Employees (Temporary Agency Work) Act 2012 (see below). Agency workers are also protected under other employment legislation - see ‘Other legislation’ below.
EU Directive on Temporary Agency Work
The EU Directive on Temporary Agency Work 2008/104/EC (pdf) came into effect on 5 December 2011. It provides that all temporary agency workers must have equal treatment with regular workers from their first day at work in respect of:
- The duration of working time, rest periods, night work, annual leave and public holidays
- Work done by pregnant women and nursing mothers, children and young people
- Action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.
Temporary agency workers must also have equal access to facilities such as childcare and must be informed of permanent employment opportunities.
Protection of Employees (Temporary Agency Work) Act 2012
The Protection of Employees (Temporary Agency Work) Act 2012 transposing this EU Directive into Irish legislation was signed into law on 16 May 2012. It provides that all temporary agency workers must have equal treatment as if they had been directly recruited by the hirer from their first day at work.
Who is covered by this Act?
The Act 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).
Who is not covered by the Act?
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 Employment Affairs and Social Protection.
Employment and working conditions
Since 16 May 2012 temporary agency workers covered by the Act have the right to the same basic employment conditions as if they had been directly employed by the hirer under a contract of employment. The right to equal pay has retrospective effect to 5 December 2011. These employment and working conditions are as follows:
This includes the duration of working time, rest periods, breaks, night work, annual leave and public holidays
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.
Derogation: 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.
There is guidance on the Protection of Employees (Temporary Agency Work) Act 2012 (pdf) on the website of the Workplace Relations Commission.
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 1977–2007
- Redundancy Payments Acts 1967–2014
- Minimum Notice and Terms of Employment Acts 1973–2005
- Organisation of Working Time Act 1997
- Payment of Wages Act 1991
- Maternity Protection Acts 1994 and 2004
- Employment Equality Acts 1998–2015
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.
Who is considered the employer of the agency worker?
This depends on which rights the agency worker is seeking to enforce. 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 clarifies the social insurance position of agency workers. It provides that agency workers are insurably employed and 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.
Legislation that does not apply to agency workers
The Protection of Employees (Fixed-Term Work) Act 2003 applies to most employees on fixed-term contracts. It does not apply to agency workers placed by a temporary work agency to work under the supervision and direction of another organisation. However, the Act does apply to agency workers employed directly by an employment agency.
Employment agencies in Ireland are regulated by the Employment Agency Act 1971. Under the Act, an employment agency must have a licence to operate its business. Details of the application procedure and a list of licensed employment agencies are available on the website of the Workplace Relations Commission.
Where to applyYou can find out more about the rights of agency workers from Workplace Relations Commission's Information and Customer Service - see address below.
If you are not getting your rights under the above legislation you may make a complaint using the online complaint form available on workplacerelations.ie.