The EU Directive on Temporary Agency Work (Directive 2008/104/EC, the "Directive") is due to be transposed by all Member States of the European Union by 5 December 2011. The central objective of the Directive is to ensure equal treatment between temporary agency workers and workers recruited directly by the organisation where the agency worker is placed (the "end user").

The Directive provides that:

1. The basic working and employment conditions (which include pay, working time, overtime, breaks, rest periods, night work, holidays and public holidays) of temporary agency workers should be, for the duration of their assignment at an end user, at least the same as those that would apply if they had been recruited directly to the same job by the end user.
   
   
2. Temporary agency workers are to be informed of vacant posts in the end user
   and be provided with the same opportunity to find permanent employment. Any arrangements prohibiting a temporary agency worker taking up permanent employment with the end user undertaking will be null and void.
   
   
3. Temporary-work agencies will be prohibited from charging workers a fee for arranging for them to be recruited by an end user.
   
   
4. Temporary agency workers must be given access to worker amenities/facilities, such as the work canteen, childcare facilities and transport services, on the same conditions as permanent workers.

The Directive requires the Member States to provide for appropriate sanctions in the event of non-compliance with the provisions of the Directive.

The Directive allows for a number of derogations or exceptions in relation to the protections set out at paragraph 1 above. There is provision for the Government to agree with their social partners an exemption in relation to agency workers who have a long term contract with the temporary-work agency and a further provision for the social partners to conclude collective agreements, for certain sectors, allowing for certain exemptions or derogations. The Directive also allows the Government to agree arrangements with the social partners which may derogate from the protections set out at paragraph 1 above, which may include a qualifying service period for agency workers. However, there are no derogations of exceptions allowed in relation to the protections set out at paragraph 2 to 4 above.

What have our neighbours done? The Agency Workers Regulations 2010 implements the Directive in the UK and came into force on 1 October 2011. The UK regulations give agency workers two types of rights. Agency workers have the right to the protections referred to in paragraph 2 to 4 above (dealing with access to employment and facilities) from day 1 of an assignment, but are not entitled to the protections referred to in paragraph 1 above (dealing with equal pay, working time, overtime, breaks, rest periods, night work, holidays and public holidays) until after a 12 week qualifying period.

It was reported last month by The Irish Times that the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton, had written to the Irish Congress of Trade Unions seeking a six month derogation from the rights contained in the Directive and it is unclear, at present, what agreement will be reached between the social partners in Ireland or how the Irish legislation will transpose the various protections contained in the Directive. In fact, the Government has not even published draft implementing legislation so, at this stage, it seems very unlikely that there will be any legislation in place to ensure that the Directive is transposed by the deadline of 5 December 2011. This means that the State may be subject to financial penalties for late implementation.

Even if the Directive has not been implemented by 5 December 2011, it is possible that some of its provisions may be directly effective. This could allow temporary agency workers to rely upon the provisions of the Directive to enforce certain rights against their employers. This is likely to be most relevant in situations where temporary agency workers are employed by the State or other public bodies.

For further information please contact Emmet Whelan.

October 2011.