What is the Temporary Agency Work Directive (also known as the Agency Workers Directive, or AWD)?
This is an EU Directive to determine that agency workers are afforded equal rights under Article 31 of the Charter of Fundamental Rights of the European Union. The Directive is part of a series of legislation to protect ‘atypical workers’ and follows the Part-Time Workers Directive and the Fixed Term Contractors Directive.
The AWD establishes that “the basic working and employment conditions applicable to temporary agency workers should be at least those which would apply to such workers if they were recruited by the user undertaking to occupy the same job” (article 5, clause 1 of the Directive). There are additional clauses governing the principle of equal treatment in respect of access to permanent positions and to facilities and amenities.
Why is this being implemented at short notice?
There is, as yet, no legislation for this Directive and the substantive issue around definition of pay remained unclear. It was understood, and legal opinion established, that there would be no application of the Directive until the bill had been published and enacted. Minister Bruton’s statement last night indicates that the government position is that this will apply, despite the lack of any legislation, as of Monday 5th December. It is therefore our advice to our customers to take measures now to comply.
What are the implications for Employers?
Employers are now bound to establish equal treatment for temporary agency workers as of day one of the temporary assignment. This differs from the implementation in the UK where a twelve week derogation period has been agreed.
The key aspects of equal treatment are around pay (article 5, clause 1), access to vacant posts (article 6, clause 1) and amenities (article 6, clause 4).
Temporary agency workers must be paid the same rate as if they had been hired directly by the end user. It is important to note that the comparator is the individual themselves and not someone doing a similar job.
Access to Vacant Posts:
Temporary agency workers must be informed of, and allowed to apply for, vacant posts in the same way as other workers in the organisation.
Temporary agency workers must have access to the same amenities and facilities as directly employed workers.
Of the above, the issue of pay is potentially most problematic and will require close co-operation with your employment agency. It will be necessary to determine the equivalent pay for the temporary worker/s, either via reference to established pay scales or in consultation with your employment agency. This information must be shared with the employment agency in order that they can ensure compliance with the Directive. Holiday pay will be included for the purposes of this Directive. We will therefore need to know the correct holiday entitlement in addition to the equivalent salary.
It is vital that the above exercise is undertaken and recorded for every temporary agency worker, or category of temporary agency worker, in order to protect your business from any possible liability or claim arising from entitlements under the Directive.
If you have any further question on this matter please refer to one of our Regional AWD representatives:
Dublin Richard Eardley 086 8207544
James Milligan 085 8031198
Mike McDonagh 086 8112350
Cork Maureen Lynch 086 0442730
Lisa Collins 083 1027678
Limerick & Galway Bobby O'Connor 086 8382299