EU Directive on Temporary Agency Work: Statements

Wednesday, 10 November 2010

Seanad Éireann Debate
Vol. 205 No. 10

First Page Previous Page Page of 12 Next Page Last Page

Minister of State at the Department of Enterprise, Trade and Innovation (Deputy Dara Calleary): Information on Dara Calleary Zoom on Dara Calleary I thank the Members of the House for the invitation to address them on the EU directive on temporary agency work. This coincides with the recent initiation by my Department of a public consultation on the transposition of the EU directive into Irish law. Ireland, along with all other member states of the European Union, is required to transpose the directive into domestic law and bring it into effect by 5 December 2011. The directive will require the enactment of primary legislation.

It is important, in the first place, to recognise the legitimate and valuable role that agency working plays in the economy. On the one hand, it can assist employers to respond to shifts in demand, to cover for short-term absences and to meet short-term skill needs. It can also be the option of choice of some people who can benefit from the flexibility, personal freedom and income it provides. It can assist persons entering employment for the first time, help unemployed persons to return to employment or help retain persons in employment at times in their careers when they might be otherwise unemployed. It can also act as a stepping stone to finding permanent employment. It must also be acknowledged that agency work does not suit everyone’s circumstances and that the very flexibility it offers can, in fact, be used in a less positive way by unscrupulous businesses.

When launching the proposal for a directive in 2002, the European Commission presented the stated objective of the directive as being twofold: first, to improve the quality of temporary agency work by applying the principle of non-discrimination and, second, to establish a suitable framework for the use of temporary agency work to contribute to the smooth functioning of the labour market. The Commission proposal stemmed from concerns that the temporary agency work sector in the EU included workers who are vulnerable in that agency workers typically have fewer benefits in basic working and employment conditions in terms of pay and working time compared with persons with open-ended employment with enterprises that directly hire them. Moreover, they may be treated differently in other ways, such as not having access to collective facilities that are available to directly recruited employees in user undertakings.

Temporary agency work is a unique, triangular form of employment, involving a temporary employment relationship subsisting between a temporary work agency — the employer — and a worker, who is assigned to work for, and under the control of, an undertaking. It is the undertaking that avails of the employment of the agency worker that is often referred to as the user or hirer undertaking. The consultation which my Department has embarked on is therefore in respect of a directive that establishes legal entitlements and obligations impacting on three parties: the agency worker, the employment agency and the user-hirer undertaking. This contrasts with the standard binary relationship between employer and employee and which is a more characteristic feature of our existing suite of employment rights legislation, which affords protection to employees ranging from those in what might be termed standard employment relationships, including those with open-ended contracts, to persons involved in atypical employment relationships such as fixed-term work. Uniquely, temporary agency working involves a contract of employment between the temporary work agency and the agency worker, on top of which sits a commercial contract regarding the supply of labour between the agency and the user-hirer undertaking. There is no intention, as has been clearly articulated in the public consultation, in forthcoming legislation to transpose the directive to formally change the nature of this so-called triangular relationship. Neither will it interfere with the employment status of agency workers or their entitlements to existing employment rights.

[612]Before delving into some of the core elements of the temporary agency work directive, I wish to avail of this opportunity to stress that, contrary to perception, agency workers are afforded protection under our existing suite of employment rights legislation. Thus, agency workers, regardless of nationality, as well as agency workers posted by their employer from overseas to work temporarily in Ireland with a contract of employment to work in the State, are afforded the same rights as Irish employees. This employment protection framework provides for transparent and easily accessible routes for remedial action and redress in cases where there has been a breakdown in the employment relationship.

Article 5.1 of the directive sets out the core principle of equal treatment that should apply to agency workers during their period of temporary assignment to work at a user undertaking. It provides that the basic working and employment conditions of agency workers for the duration of their assignment at a user undertaking should be at least those that would apply if they had been recruited to that undertaking to occupy the same job. Article 3 defines the essence of what constitutes basic working and employment conditions to include hours of work, overtime, breaks, rest periods, night work, holidays and public holidays and pay.

In the context of the consultation, I am seeking the views of interested parties, in particular, on issues concerned with defining, for purposes of inclusion in implementing legislation, the constituent elements of pay that will be consistent with meeting the equal treatment requirement of Article 5. Thus, for example, stakeholder comments and input to the consultation will help inform the legislative context in identifying the constituent elements of pay beyond basic pay to include, for example, overtime, shift work allowances and so forth that may be deemed appropriate for inclusion in the contractual entitlements of temporary agency workers to reflect their contribution for work done.

Key elements of the debate in this regard concern the extent to which there are elements of remuneration such as incentives and rewards which reflect the specific and different quality of the relationship between the employer and permanent employee. Views are being sought on the extent to which there may be exclusions from the scope of pay in respect of, for example, occupational pensions and financial participation schemes which reflect the long-standing nature of the relationship of directly recruited employees with their employer that would not normally apply to temporary agency workers temporarily assigned to work for a user undertaking. Such elements of remuneration and rewards may be seen as not coming within the scope of pay and may be excluded from the equal treatment principle enshrined in Article 5.

The role that collective agreements or other workplace agreements or pay norms can play in the implementation of equal treatment rights for temporary agency workers is also a core issue. This may be the case if pay norms in place in user undertakings go beyond those that arise under legislation, regulations or administrative agreements. Currently, pay norms embraced under these institutional arrangements include the national minimum wage and conditions agreed under universally binding collective agreements, such as in registered employment agreements. According to the terms of the directive, the principle of equal treatment for temporary agency workers in respect of basic working and employment conditions applies to the extent as would apply to directly recruited workers established under agreements that are deemed to be binding and general provisions in force in a user undertaking. The views of stakeholders are being sought, therefore, on whether pay norms, which are incremental to those provided by legislative and other regulatory means, might also embrace, for example, pay scales or other contractual arrangements in place in the user undertaking. Comment is also being invited on the pay norms that should come within the scope envisaged within the meaning of Article 3 of the directive and which are, accordingly, deemed to be binding and generally in force in user undertakings.

[613]Aside from establishing a general principle of non-discrimination between temporary agency workers and comparable employees directly recruited to an end-user undertaking in respect of basic pay and working conditions, the directive also embraces a number of additional aspects to ensure existing restrictions and prohibitions on temporary agency work will be reviewed periodically in order to verify whether the specific conditions underlying them still obtain — there are no such restrictions in Ireland; temporary agency workers will be informed of any vacant posts in the user undertaking and will not be prevented from forming a contract with the user undertaking after their temporary assignment; temporary agency workers will be given access, as are directly recruited workers, to what are termed collective facilities such as staff canteen, child care and transport services; dialogue between the social partners will be promoted to improve temporary agency workers’ access to training in temporary agencies and user undertakings; temporary agency workers will count for the purposes of calculating the threshold above which bodies representing workers are formed at either the temporary work agency or the user undertaking; and the user undertaking will provide suitable information on the use of temporary agency workers for the workers’ representatives.

The directive also provides that individuals may seek remedial action for an infringement of their employment rights through an appropriate dispute settlement body. The consultation invites views on how an agency worker might pursue a claim in such situations, as well as on the most appropriate means of pursuing such claims and the appropriate body for progressing such claims. This should have regard to the substantial dispute resolution processes already in place under employment rights legislation. Furthermore, member states are required to lay down rules on penalties applicable in the event of infringements which are to be vigorously enforced. Such penalties must be effective, proportionate and dissuasive.

The directive provides for a number of derogations from the principle of equal treatment under certain conditions. Article 5.4, for example, affords the social partners at national level the opportunity to negotiate and conclude an appropriate framework agreement which can derogate from the principle of equal treatment, provided there is an adequate level of protection for temporary agency workers. This could relate, for instance, to the operation of a qualifying period before agency workers would enjoy equal treatment. This option presents an opportunity to achieve a balanced outcome to meet the needs of employers for flexible labour supply, as well as achieving the objective of protecting agency workers. I am in the process of facilitating discussions with the social partners to this end.

The ability to conclude a framework agreement has implications for Ireland’s labour market competitiveness. In the United Kingdom, for instance, Ireland’s closest market, agreement has been reached between the unions and employers for a 12-week qualifying period before the application of equal treatment, in terms of basic working conditions, to agency workers. It is my sincere hope an agreement can be reached by the social partners reflecting the particular circumstances of the Irish labour market and the de facto position in other EU member states. As the negotiation and conclusion of a framework agreement under the terms of the directive are within the gift of the social partners, the issue of a derogation from the directive’s principle of equal treatment to include, for example, a qualifying period, does not form part of the public consultation.

As is the norm in the enactment of primary legislation, my Department will, following the completion of the consultation process, undertake an impact analysis of the provisions to be included in implementing legislation transposing the directive. This will have to take account of the fact that for many of the measures in the directive, it may not be possible to quantify costs and benefits as the statistical information available on the sector may be relatively limited. Official data for the temporary agency sector are extremely limited. In general, it is estimated that when we speak of the size of the temporary agency worker sector in Ireland, we are [614]speaking about agency workers representing approximately 2% of total employment. On that assumption, the legislation to transpose the terms of the directive will potentially impact on approximately 40,000 agency workers. In terms of absolute numbers, however, there is likely to have been a decline in the number of agency workers, given the severe reversal in the economic situation. On the basis of the limited information available, it may be possible to carry out a qualitative and partially quantitative analysis of the potential impact of the directive. It is intended that this work will be completed prior to the enactment of the implementing legislation.

The House will be familiar with the possibility for member states, within the principles set out in the directive, to adapt the rules and definitions as laid out in it to their own specific circumstances, provided they afford a higher level of protection to agency workers. The views provided by interested parties in response to this consultation will help fully inform this process. With regard to the consultation, I am inviting views from a wide spectrum, in particular, from agency workers or their representatives, temporary work agencies or their trade organisations and user or hirer undertakings and employers generally and their representatives. These views will assist in the preparation of the necessary implementing legislation which I look forward to bringing to the House for enactment in due course.

Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford I welcome the Minister of State. I am a substitute for my colleague, Senator John Paul Phelan, Fine Gael spokesperson in this area. While I am not sure my views will fully reflect his thoughts on the directive, I am glad to have the opportunity to say a few words on it. Its transposition will be the subject of legislation and this is probably the preamble to the debate we will have when it is introduced. That is welcome because it is not the norm to have an opportunity to receive an overview in advance of the introduction of legislation. This is helpful and perhaps we could learn from it in the case of other legislation. It would be helpful to have an opportunity to receive an overview of legislation some months in advance in order that the Minister in question could take on board the views and concerns of the Opposition. There is unanimity on what the Minister of State stated and I presume that when the legislation is brought before us for approval, it will be supported by all sides of the House, although we do not know on which side of the House each will be at that stage.

The forthcoming legislation stems from an EU directive. During the Lisbon treaty debate last year some claimed workers’ rights were being threatened by the European Union, but we focused on the fact that they had, in fact, been much enhanced since Ireland joined what was then the EEC in 1973. In this directive we have an example of a framework from Brussels which, when put in place, will be to the benefit of agency workers. However, we are now in a place where jobs must be the focus of everything. Bill Clinton coined the phrase, “It’s the economy, stupid,” but now it must be, “It’s job, jobs, jobs, stupid.” Everything we do must be aimed at restoring the country to economic well-being and while we may use a variety of measures, the focus must be on the retention and creation of jobs.

The concept of agency work is not ideal. In an ideal world the majority who hold agency jobs would have longer term and more secure work. I was interested to hear that there were approximately 40,000 agency workers in Ireland, who come from here, there and everywhere. They do valuable work, contribute to the economy, generate economic activity and comprise a significant group.

The directive came into being in 2008, but there have been significant economic gales throughout the continent of Europe since bringing with them, unfortunately, negative consequences for its economies and Ireland, in particular. Therefore, when we discuss new rules, regulations and obligations to be imposed on employers, we must ensure none of them will [615]create difficulties in job creation, even if a job is to last for only one day, one week or one month. I mentioned that it would be ideal if agency workers could be provided with full-time jobs, although agency work hours suit a number of people.

When the Minister of State and his colleagues are preparing the legislation, they must be conscious that the country, the Continent and the world are very different from what they were in 2008. We must ensure whatever measures and restrictions are put in place through legislation do not impinge on short, medium or long-term employment prospects in this country. I support the Minister of State’s view that agency workers need the maximum protection and their entitlement to benefits should be applicable. That said, we must be a little cautious that further bureaucratic barriers are not raised to employment creation. Flexibility will always be required in the labour force, especially during an economic downturn. I am sure the Minister of State’s colleagues are examining the minimum wage, for example. All measures need to be examined in the context of our current economic plight and the need to put in place those measures which could generate economic activity while removing those which might be a barrier to job creation.

I noted the Minister of State referred to the possibility of a framework or regulation for agency workers’ pension rights and entitlements. Everyone is entitled to a pension. It is not just in the area of pensions for agency workers that we need a strong and vigorous national debate. The whole pensions industry, which is somewhat a misnomer, whether contributory, general social welfare or industry-based, and the payment of pensions are very much up for debate. The agency workers’ element will be a small piece of the larger jigsaw. We will need new and radical thinking for pension entitlements, provision and funding.

The Minister of State said the “framework agreement under the terms of the directive are within the gift of the social partners” which is a throwback to the Celtic tiger. The House often debated how the social partners were taking over many of the roles which should have been pursued by politicians. This now may be one of the remaining powers the social partners will have. Perhaps too much was in the gift of the social partners and not enough in the control of the elected Members of both Houses. We have been left where we are as a result of some decisions too far removed from the political process.

The Minister compared the Irish figures with those in the UK. While we do not have to follow the UK’s lead, it does seem to have taken a reasonable and balanced approach to this directive.

The legislation on temporary agency work will be before the House soon and I presume my party’s spokesperson will be back in full action then to assist in its passage. It must be recognised that agency workers play an important role in the economy. I am glad the Minister of State pointed out they have strong rights under Irish law. Several high profile cases highlighted nationally have presented a false impression that agency workers are discriminated against or treated unfairly. The majority of agency workers are treated well by their employers. We must have space in the economy for this type of flexible work. It is only a question of ensuring the regulations are in place to ensure fairness and common sense apply. I wish the Minister of State well in his work in this regard. I look forward to publication of the legislation which I am sure will receive all-party support.

The directive is based on the broader spirit of European social thinking of bringing a balance and fairness to employer-employee relations. One can contrast European thinking on this matter with that of China, the US and India. There is a concern that their economies are booming because of a less regulated and regimented approach to this area. We are where we are, however. Ireland is very much part of Europe. Since the formation of the European Economic Community, Europe has ensured fair and balanced relationships between employer and [616]employee in which rights and responsibilities are at one. When we are putting the finer detail to the legislation, we must ensure employment creation, even for short-term jobs, is protected. Job creation and economic activity will turn the country around, an idea that must be central to our political thinking.

Senator John Carty: Information on John Carty Zoom on John Carty In welcoming the Minister of State, Deputy Calleary, I would like it noted there are three Members present in the Chamber from County Mayo and Senator Bradford, considering his recent marriage announcement, will soon be an honorary member of the county. I do not know if Senators Ryan or Dearey have a Mayo connection but Senator Quinn has been spending much time in the county recently.

I welcome the opportunity to discuss the EU directive on temporary agency work. Under the terms of the directive, member states are required to transpose it into national legislation by 5 December 2011. I am sure the Minister of State will ensure its passage through both Houses which will be an opportunity for the House to ensure the legislation will be beneficial both to employees and the country.

The directive respects and complies with the principles of the Charter of Fundamental Rights, specifically Article 31 which provides that every worker has the right to working conditions which respect his or her health, safety and dignity to a limitation of maximum working hours, rest periods, night work, paid holidays and public holidays.

It also covers work undertaken by pregnant women and nursing mothers, children and young people, and includes action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

  4 o’clock

The directive is therefore wide-ranging. The legislation will be comprehensive when it comes before the House. The directive makes changes to national law and any further employment rights, since Article 2 now designates employment agencies as the employer. Most countries guarantee substantial rights to all people at work. The main purpose of the temporary agency work directive, as far as I can see, is to harmonise the law across the European Union. This is to prevent unfair competition between different member states. For example, if an EU country has loose employment protection while Ireland has strong employment protection, companies will shift their operations, not because the other country is more efficient for doing business but because wage rates are lower. We must be cognisant of this at the present time with the economy as it is. We must ensure fair play across the EU. We cannot afford to see other member states introducing legislation so that business can be done there at an unfair advantage, thereby putting us at a disadvantage. This is especially so as we are on the periphery of Europe and employment is of the utmost importance now, as it will be in future. There is a social function to most European directives. The social function in this one is to ensure a higher standard of living and quality of life.

While the directive provides for equal treatment for agency workers from the first day of employment, there is provision for a derogation within limits by way of collective agreement or by agreement between the national social partners. In effect, the derogation would set out an agreed time limit or qualifying period after which the agency worker would qualify for equal treatment.

As the Minister of State has told the House, agency working plays a useful role in the economy. It helps employers to respond to changing demand and can help employees in terms of greater flexibility, whether in employment or entering the labour force. At the same time, agency work might not suit everybody and we must be wary of unscrupulous behaviour.

[617]I understand the objective of the directive is ultimately to improve the quality of temporary agency work and ensure a smoother functioning of the labour market. I noted the Minister of State’s reference to flexibility, which is sought by employers. We must ensure that they have it, but not at the expense of workers.

Agency work is atypical in Ireland, but is more common in the EU. The directive aims to ensure that vulnerable agency workers are typically protected. The temporary agency working sector in Ireland accounts for about 2% of employment. As the Minister of State said, the directive will not change the employment status of agency workers or their entitlements to existing employment rights. Quite rightly, agency workers are protected under employment rights legislation.

I welcome the fact the Minister of State has opened the directive to consultation. In his speech, he did say that such consultation will be broadly based in order to seek the views of all the social pillars. We have until 2011 to ensure that this is done. Following that consultation process, the ensuing legislation will hopefully be strong and to the benefit of all concerned.

The views attained will help to inform this process fully. The consultation will help to identify the constituent elements of pay, beyond basic pay. It should include, for example, overtime and shift work allowances that may be deemed appropriate for inclusion in the contractual entitlements of temporary agency workers to reflect their contribution for work done. These views will assist in the preparation of the necessary implementing legislation. I look forward to welcoming the Minister of State back to the House to discuss it. I thank him for attending the House for this debate. I wish him well in preparing the forthcoming legislation based on the temporary agency work directive. I am sure the legislation to be presented to this House will ultimately make for good law when enacted.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I welcome the Minister of State and I am very interested in what he has had to say. I was impressed, as Senator Carty noted, that temporary agency workers account for only 2% of the work force. I employed quite a few people in my career and I would like to tell the House about one such employee, called John, who worked in our Ballinteer store. About 18 years ago, he came to me in mid-December and said: “I have worked here for nine years and I will be 65 on 31 December. I plan to retire”. Our company had a policy of encouraging retired people to come back and work part-time, particularly those with skills. John had worked at various jobs during his lifetime. He told me:

I have worked here for nine years and haven’t missed a day. I wake up in the morning looking forward to coming to work. I look at my watch on a regular basis, thinking that it must be 4 o’clock in the afternoon, only to discover that it is 6 o’clock. The day had gone faster than I thought.

I was very impressed with this and we talked about it. Unfortunately, John died on Christmas Day that year, some five days before he was due to retire. His wife had also wanted him to come back to work on a temporary basis. She died three days later, so we had two funerals in the local church that day. We talked about John and the fact he said he woke in the morning looking forward to coming to work and looked back on his day thinking it was 4 o’clock to discover it was 6 o’clock. We set that as a target for those who worked with us. At the time we thought that was for full-time employees, but should it apply to agency workers of whom there were very few? We decided that it should also apply to them. John’s words had a huge impact on us and left a mark. It reminded us of the responsibility that employers have.

The EU’s fundamental function is to provide its citizens with a better quality of life and this directive is consistent with that aim. It may well be that a lot of employers intend to implement it, but do not get around to doing so. I hope this new measure will help to prevent unfair [618]competition between member states. If, for example, Portugal has loose employment protection and Ireland has strong employment protection, companies are most likely to shift their operations to Portugal. It is not that Portugal is more efficient, but that companies can pay less there. We must therefore try to prevent this race to the bottom, which is so detrimental to the workforce.

We must remember, however, that as Europe competes with the rest of the world, we do not want to find ourselves putting in such constraints that would prevent us from competing internationally. We should be aware of that fact. In spite of the economic downturn, the agency work industry is continuing to create jobs that otherwise would not be created. Agency work is helpful in people’s transition between unemployment and work, while also providing a flexible form of labour that allows more people to enter the labour market. In particular, agency work further enhances the employability of workers through training and investment.

Proposals for a directive to regulate temporary agency work were first raised in 1982, but were blocked for years largely due to opposition from the UK. There was a fear there that the country’s highly deregulated labour market might suffer from granting rights to its 1.4 million agency workers.

The directive will harmonise EU-wide legislation on temporary workers, which varies considerably between member states. In Ireland, the existing protection is quite strong. However, in Germany, the Netherlands and Spain, the situation is quite different. For instance, there is a ban on the use of agency workers in the public sector in Spain or in the construction sector in Germany. As this situation is being reformed, some experts believe it could prepare the ground for a better economic recovery. Look at the fact that many companies have recruitment freezes but that does not mean they are not busy. They can get a temporary person into the workplace to continue to compete in the market.

We must ensure we do not make Europe uncompetitive by introducing regulations that do not apply to the rest of the world. There has been some criticism of the directive, for instance by the Small Firms Association, which says it will give short-term, fixed-term and agency workers the same terms and conditions as full employees. From day one it will make things very difficult for companies employing temporary workers. I understand people are worried about jobs but we must examine the broader, long-term picture of improving people’s rights in the workplace. Let us look also at the fact that we are still importing workers into Ireland in spite of the recession.

For the past three years I have been president of Eurocommerce, which is based in Brussels and represents 6 million shops in Europe. It represents 31 million retail workers but I do not know the proportion of agency or temporary workers. It represents the retail, wholesale and international trade sectors in Europe. The organisation has met trade unions and welcomes the directive, describing it as “well adapted to the needs of the commerce sector” and “a fine example of ‘flexicurity’ in action”. The general consensus is that European labour markets are too rigid. Labour market rules must be made more flexible with a combination of easier hiring and firing rules with good levels of social protection, including high benefits for the unemployed and a proactive labour market policy. This is one of the main challenges of the EU’s long-term vision for economic, social and environmental reform through the EU 2020 goal.

I am interested in the view of the Minister of State on the fudge whereby the UK Government, in agreement with the social partners such as the TUC and the Confederation of British Industry, opted out of offering agency workers the same pay and basic conditions as full-time staff from day one, as the directive assumes, and instead implements the measures after a 12-[619]week period. Is it beneficial to implement the directive before the December deadline? Why not do so?

Implementing what the directive requires is not totally straightforward. For example, there is an argument about which terms and conditions agency workers should be entitled to enjoy on an equal basis with directly employed workers. What about alternative dispute resolutions to avoid tribunals? Can smaller employers insist on different treatment if they have formal pay bands? Could we see workplace agreements established to get around the agreement? Perhaps the Minister of State can elaborate on these matters.

These concerns have been expressed but this is a step forward for social Europe. The number of temporary agency workers, which in many member states is still a relatively insignificant proportion of the labour force, will undoubtedly increase over the coming years, as barriers to the use of such work are removed. I welcome the legislation, which is a step in the correct direction.

I have some concerns, particularly about the need for Europe to be competitive in the years ahead and the difficulty if we introduce regulations or constraints that limit the ability of Europe to compete with others. In the immediate years ahead we will not be able to compete with India and China on pay but we should not burden ourselves by introducing regulations that make it difficult for us to hire people. Part of how we will solve the employment problem is by making it more attractive to take on people. The more constraints introduced, the more difficult it is. The objective is correct — let us see if we can get both correct.

Senator Mark Dearey: Information on Mark Dearey Zoom on Mark Dearey I welcome the Minister of State. I welcome the opportunity to speak on this topic ahead of the consultation process. Speaking as an employer, I highlight the precious nature of a job and the importance of the relationship between the employer and employee. In my case, my relationship with staff is binary, as was the case with Senator Quinn. I thank Senator Quinn for his story, which he told movingly. The relationship with agency workers is triangular, involving contracts between the agency and the worker and between the agency and the employer. This set of relationships is more complex and the likelihood of things going wrong and the room for exploitation is greater. This can exist in binary relationships, which is why we have partnership and unions, and can also exist with these triangular relationships. That is why this legislation is overdue.

Perhaps the Minister of State is aware of an article by Father Brendan McPartlin, SJ, in Working Notes. He talks about the history of the directive, which Britain has long opposed for competition reasons. Ireland could not afford to lose competitiveness with regard to Britain and joined for the purposes of tracking the UK. This opposition continued until 2008. I understand Ireland felt compelled to take this position but I am glad both countries have moved on. It is important that when capital seeks flexibility and competitiveness, which it does in this instance, not in regard to materials or utilities but in respect of human beings, those who are the subject of the search for flexibility and competitiveness are protected and not subject to exploitation. This can easily happen through business pressure, increased competition in the sector and huge numbers of immigrants coming into a country. There are also reasons and mechanisms through which agency workers can become the subject of exploitation. I am not sure it is good for business.

Recently, I spoke in the House about the minimum wage and how we could create a bridge between jobseekers and the workplace, without allowing the minimum wage to become a barrier to employment. I got my head taken off on Facebook for making the suggestion that the State should help young people on €100 a week to bridge the gap between jobseeker’s benefits and employment. I suggested a contribution of €7 from the employer and €165 from the State. This would reduce the State’s involvement in sustaining a person by €50 a week on [620]the basis of a 35-hour week. This would move the person into employment where he or she would be subject to levies. This could help employers to stop the current practice of sub-optimal service, where one makes the customer wait because the business is selling cheaper goods or fewer goods but it takes as long to sell them as to sell expensive goods. We are in this fluid situation and we are in a recession, although technically we came out of it some time ago. There is no question that employers are under enormous pressure to see flexibility and competitiveness, yet I still resist it because I do not believe agency work is good for an employing organisation. I am pleased to see the figure is 2%. At the margins, there is a role for agencies to fill spikes in demand and to take care of peripheral activity within a company. In the case of the HSE, where agency workers have become common, my understanding from the nursing unions is that it is a far more expensive way of doing business than the traditional binary relationship of employer and employee. The core strength of my small business is the staff, the relationship I have with them and the relationship they in turn have with customers. I wonder how sustainable it would be if I were to embark on the practice of using an agency to supply staff.

Ironically, I understand that in a number of European countries agency work was used initially as a tool to bring not easily employed people into the labour market. It was conceived in some countries to have a social benefit attached to it. However, it morphed into something else. There was a cynical use of it in the Gamma case. Gamma Industry acted as the agency while Gamma Construction delivered the work. Two arms of the same corporation did not enter into the kind of healthy relationship I spoke about but an exploitative one where temporary staff in Ennis in particular were being paid €3 a week. Their rights were not explained in Turkish, which was the only language they understood. They had to have their meals separate from the rest of the staff.

Our employment rights legislation does not allow a comparison between agency workers and permanent workers but only between agency workers and other agency workers to establish whether they are being treated equally played against those Gamma workers at the time. It is a problem in that in the 1998 Act comparisons are not allowed between agency staff and full-time staff doing the same job but must be between agency workers. That is my understanding of the legislation. The Minister of State, Deputy Calleary, is looking at me in a way that suggests I could be wrong. I accept I may be wrong but that is my understanding of the provision in the Act.

I welcome the public consultation and the eventual adaptation in December next year of the directive. I also welcome the fact that local conditions are being taken into account and that it allows social partnership to deal with the finer detail of how implementation will happen in this country. That makes sense because we are in a diverse Union with a wide range of economies. I also note that the directive begins by quoting the Charter of Fundamental Rights of the European Union and that this directive finds its wellspring in the charter.

I cannot help but finish with a barb against those who claimed that the Lisbon treaty would wreck workers rights when in fact the formal enshrining of that charter happened as a result of the Lisbon treaty and that it is the wellspring for the directive. The European social democratic approach to labour and to this directive is progressive while the more aggressive, dare I say Anglo-Saxon model that characterises some relationships between employers and employees, which does create a race to the bottom, is not progressive. By allowing for a consultation period and ultimately transposing the directive itself into Irish law we are embracing the more progressive model. It is important that it is done carefully and that local knowledge plays a part. Ultimately, these triangular relationships need strong legislation because of the range of [621]problems as to who employs whom, who is responsible for whom and that can only be dealt with by clear and effective legislation.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Before I call Senator Ryan I welcome a former Member of the House, Councillor Mary Jackman, to the Visitors Gallery.

Deputy Brendan Ryan: Information on Brendan Ryan Zoom on Brendan Ryan I welcome the Minister of State, Deputy Calleary. We are dealing with the temporary agency workers directive 2004/104/EC which must be transposed into Irish law. It was published on 5 December 2008 and must be transposed by 5 December 2011. I question why it has taken us until now to get seriously involved in it.

I welcome the directive which is a good one. Its transposition into Irish law would be welcome. I hope it will result in legislation of which we can all be proud. The equal treatment principle which is contained within Article 5.1 of the directive is progressive. I will refer to it later. I wonder whether we would have come up with such measures left to our own devices. It is an example of where European Union legislation and the work of the Union can benefit Irish people in a progressive way. I concur with a previous speaker who referred to it as one of the benefits of membership of the European Union. We must transpose the directive into Irish law. Some flexibility is allowed within the directive, including possible derogations but, by and large, the resulting legislation must reflect what is contained in the directive and its major principles.

I am against the concept of a qualifying period for equal treatment. Such a concept is alien to me in terms of people’s rights. There should be equal treatment from day one. Nobody should be in a position to deny workers who come along at a later stage the right to equal treatment in any employment in which they engage. Such an approach is wide open to abuse. I am surprised by the news that Britain has opted for a 12-week qualifying period. Situations could arise whereby an agency would send a worker to an employer for eight or ten weeks and then put someone else in the position. I am totally opposed to the concept.

The directive deals with the triangular relationship; the employment contract on the one hand and commercial contracts on the other hand. Employment agencies are outside the scope of the directive. The Oireachtas Joint Committee on Enterprise, Trade and Innovation has considered the directive. I have seen the consultation documents. One of the issues that arises relates to the reference to economic activity in Article 1.2 and the question of Departments and State agencies engaging the services of outsiders. That might not be defined as economic activity but I do not think there is a problem with it. There is economic activity and a commercial element to one half of the relationship so I do not envisage any difficulty in that regard.

A possible derogation is envisaged on Article 1.3 which refers to member states after consultation with the social partners providing that the directive does not apply to employment contracts or relationships conducted under specific publicly supported vocational training. I accept the principle which appears reasonable but it is difficult to visualise how such an agency would be engaged in that type of employment. It may be possible but it is difficult to see how agencies would engage in a public utility. I could be convinced in that regard.

Article 3 deals with adopting definitions. In his commentary the Minister of State referred to adopting the definitions contained in the Organisation of Working Time Act 1997. That is positive. We should continue to hold on to what we have. I welcome the fact that we are not departing from those principles. The question of equal treatment arises in Article 5.1 which states, “The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly to occupy the same job.” I welcome that positive statement. Article 3.1(f) defines basic working and employment conditions. Agency workers should not [622]be used to frustrate the rights or opportunities of other workers. An employer should only engage in hiring agency workers with the agreement of the existing workforce. For example, the HSE is exploiting the use of agency workers. I know of someone who has taken a sabbatical and is entitled to return after one year but who is being made to wait a further year before being rehired because the HSE is using agency workers to frustrate her efforts to return.

There are questions surrounding whether more generous conditions should apply to agency workers in respect of their working times. To do otherwise would be to go against the principle established in the directive which has been worked on for some time. The consultation document refers to difficulties encountered in practice, but there will not be any. In many organisations holidays are earned. For example, holidays are earned having worked for one month. Therefore, this will be easy to administer.

I differentiate between profit sharing, pensions, etc. There is a case to be made for considering existing long-term arrangements outside the context of the directive, but I am open to being convinced. There might be a reason for us to opt out.

Possible discrimination against pregnant women and nursing mothers is an issue. In a regular employment arrangement risk assessments must be made for all types of work in an organisation, but additional assessments must be made where a worker is pregnant. Having done this, the decision in normal conditions might be to remove a worker from a particular type of work for the duration of the pregnancy. However, it might not be reasonable to expect the redeployment of an agency worker to perform a task he or she was not hired to do in the first instance.

The question of who monitors the relationship is important. To test for equal treatment, a worker will make a local comparison. Difficulties in this regard might arise in respect of newly created positions and the determination of how the work function is deemed to be fulfilled. In the main, however, making comparisons will be reasonably easy and we can expect that workers will not be found wanting in making them. Has the directive been transposed elsewhere and how has this matter been addressed?

Where dispute resolution is required, the obvious action would be to approach the agency first. If this does not resolve it, a claim could be pursued with the Labour Relations Commission, LRC, the existing disputes resolution mechanism. However, I will make a different suggestion concerning a new advocacy role. Instead of approaching the LRC and waiting for a hearing to be held, someone should be given a new role, as part of which, for example, he or she would make a telephone call to deal early with and advise on a dispute. In this way, an offending person could be dealt with easily enough.

Regarding penalties and remedies, it is stated penalties should be effective, proportionate and dissuasive. This is a good and useful set of criteria.

A question arises as to whether the employer or the hirer is responsible for dealing with health and safety issues and risk assessments. This grey area may pose practical difficulties and will need to be monitored.

What if an agency acts in good faith on the basis of information provided by the hirer? Perhaps a standard provision addressing matters such as this could be included in commercial contracts.

I like the directive. It is progressive, simple in its layout, easy to read and likely to achieve its objectives of protecting agency workers, improving the quality of agency work and ensuring equal treatment. I look forward to discussing the legislation and hope there will be no major dilution because of the available derogations. I wish the Minister of State well in its introduction.

[623]Senator Terry Leyden: Information on Terry Leyden Zoom on Terry Leyden I welcome the Minister of State, Deputy Calleary, and wish him continued success in his important Ministry and meeting the other responsibilities thrown on top of him. He has broad shoulders on which to carry them to achieve success on 25 November.

The directive was debated in 2008 and agreed in 2009 and is being implemented as fast as possible in the House. However, introducing legislation to implement European directives takes time. Although times are difficult, the Government’s introduction of the legislation is appropriate and welcome. I also welcome the opportunity to speak on this important topic.

The directive aims to ensure the protection of temporary agency workers by ensuring the principle of equal treatment is applied across the board. It will enshrine in EU and Irish law the principle that the basic employment conditions of temporary agency workers are the same as if they were directly recruited by the company. For too long, certain recruitment and agency worker companies treated workers poorly.

I draw to the attention of Members some of the provisions of Article 6 of the directive. It states: “Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment”. During the years I have heard of people being employed as temporary agency workers, staying in that role for three or four months and not being informed of a permanent position. It does not make sense for a company to invest in a staff member and then not to make use of his or her knowledge and skill set in filling a permanent position.

Another important provision of the directive provides for equal treatment for agency workers in actions taken to combat discrimination on the grounds of sex, race, ethnic origin, religion, beliefs, disability, age and sexual orientation. I know of many young mothers who find returning to the workplace difficult. Child care is a significant issue and I am delighted the directive addresses a major inequality in the provision of child care services by companies. Companies must offer the same provisions to agency workers as to full-time staff. This is a fantastic change that will be of major benefit to mothers throughout Europe.

The directive has the capacity to slow the race to the bottom in terms of workers’ rights. Harmonising workers’ rights laws across the European Union will help to prevent unfair competition between member states known as social dumping. The directive will ensure a higher standard of living and better quality of life for employees and more efficient, productive and happier workers for employers.

It is right that Ireland is introducing this legislation. Irish workers have travelled the length and breadth of the world to obtain employment, including Britain and the United States of America. While conditions have improved dramatically, Irish workers in England were not always treated well. Most of the money earned was repatriated to Ireland. Many Irish people who are entitled to claim social benefits in Britain have not applied to avail of them. When they applied for their old age contributory or non-contributory pension, they were asked for their social security number in Britain. Some ignored this request, believing it would not be of benefit, if applying for a contributory pension in particular. However, it has come to my attention that numerous people already benefit, having applied directly to the British Government. The forms are available from Deputies, Senators and councillors. I brought the matter to the attention of councillors throughout the country and recently went on Mid West Radio to discuss it, as a result of which I have received queries from County Mayo. This is merely to indicate there are people who may qualify for a pension in Britain and that it would be worth their while to apply. We extended the pre-1953 stamp scheme to our emigrants in Britain and many qualified. There is an enormous transfer of funds to Irish people in Britain, rightly so, because they transferred so much money to Ireland in the 1940s and 1950s and we owe them a great debt of gratitude. It would be worthwhile to try to get across this message. If people had a [624]social security number in Britain and worked there for four or five years in the 1960s or 1970s, they can qualify for a reasonably generous pension. There is a very good pension system in Britain, with a reciprocal agreement between Ireland and Britain. This debate gives me an opportunity to highlight the issue. This social policy is one of the benefits of EU membership.

My father was a member of the Cuffe Street union of bricklayers and stonemasons and at the forefront in dealing with labour issues when the question of “wet-time” was introduced. Probably no one in this House has heard of this, but in the 1950s and 1960s it was a provision that applied to builders. Fianna Fáil is the most socialist side of the Government and has always dealt with social issues. My father was a life-long member of Fianna Fáil, but he was also a life-long member of a union, which is a great combination. The Minister of State may feel very comfortable in his position with responsibility for labour affairs knowing that the party always represented the working people of this country to the best of its ability. I can say with pride that it fought alongside the Cuffe Street union of bricklayers and stonemasons. That is only one indication; I am sure my colleagues realise the full extent of our involvement in the labour movement. When I was a Deputy for Roscommon, I secured the labour vote in the constituency for that reason. I hope that in the by-election on 25 November we will secure transfers from the Labour Party candidate in Donegal South-West.

Minister of State at the Department of Enterprise, Trade and Innovation (Deputy Dara Calleary): Information on Dara Calleary Zoom on Dara Calleary That is certainly tenuous.

I thank Senator Leyden and all other Senators for their contributions. This marks the start of a consultation process, into which the input of Senators will feed its way. We have placed advertisements in the newspapers and on the Internet and the process will fully inform the preparation of the implementing legislation which I hope to be in a position to introduce to the House next year. When Senator Bradford queried who would be around to do this, it struck me we were a little like temporary agency workers, except that we had much less protection.

There are a number of issues I wish to clarify. There were a number of comments about the qualifying period which obviously will be in the consultation process. However, there are questions to be asked. Senator Ryan commented on the 12-week period. We share an island, part of which is in the jurisdiction of the United Kingdom. Therefore, for reasons of competitiveness, we need to look at the issue. The framework agreement will have to encompass the qualifying period and consider whether it is appropriate that from day one the concept of equal treatment should apply. There are issues that affect our competitiveness, as Senator Bradford noted. In particular, I invite those who will get involved in the consultation process to give some thought and consideration to the difficult issues that arise in that regard.

Deputy Brendan Ryan: Information on Brendan Ryan Zoom on Brendan Ryan There is great potential for abuse.

Deputy Dara Calleary: Information on Dara Calleary Zoom on Dara Calleary Absolutely. There are many associated issues, of which that is one.

The reference to occupational pensions is important. As Senator Bradford stated, there is a wider debate to be held on pensions and pension provisions for temporary agency workers, especially those who spend their entire careers in the sector who, for whatever reason, do not enter a formal working relationship. We must give consideration to the people concerned, even though they comprise a small group.

Senator Bradford was concerned about the position of the social partners. It is indicated in Article 5.4 of the directive that the deal can only be concluded by the social partners at national level. It is not the case that the social partners will be given carte blanche from Dublin but from Brussels.

[625]Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford It is spreading.

Deputy Dara Calleary: Information on Dara Calleary Zoom on Dara Calleary Yes, the malaise is spreading.

I again thank Members for their contributions and everybody involved. This is an issue to which we will come back and which will be referred back to Senator Ryan’s committee before we implement the directive. I look forward to a vigorous debate and leading same.

Sitting suspended at 4.45 p.m and resumed at 5 p.m.


Last Updated: 27/01/2016 10:12:12 First Page Previous Page Page of 12 Next Page Last Page