Advice for Agencies
If not already completed, Agencies should urgently review their contract documentation with Hirers and should now consider the issue of indemnities or warranties for such contracts.
Agencies will need to include an obligation on the Hirer to provide information about pay and basic working conditions in order to ensure that its temporary workers are being treated in accordance with the Act and have been paid in accordance with the Act as and from the 5th December 2011.
Agencies should seek information from the Hirer, in writing, in relation to what the Hirer is/would be paying a directly recruited employee. The request should be documented and retained on file.
Should the information not be forthcoming, the Agency should take reasonable steps to follow up and obtain the information from the Hirer.
The Act requires the Hirer to provide this information.
Evidence of this kind will be necessary to limit the Agency’s liability under the legislation.
The following questions should be asked and answered by the Hirer:
1. What basic pay would be payable to a direct recruit doing the same or similar work?
2. What premium would be payable to a direct recruit in respect of shift work?
3. What amount would be payable to a direct recruit in respect of piece work?
4. What premium would be payable to a direct recruit in respect of overtime and what terms and conditions would apply in respect of overtime?
5. What premium would be payable to a direct recruit in respect of unsocial hours?
6. What provision would be made for Sunday work (if Sunday work were done)?
7. What terms and conditions would apply to a direct recruit in respect of night work?
8. What terms and conditions would apply to a direct recruit in respect of working time?
9. What terms and conditions would apply to a direct recruit in respect of rest periods and rest breaks during the working day?
10. What terms and conditions would apply to a direct recruit in respect of annual leave?
11. What terms and conditions would apply to a direct recruit in respect of public holidays?
Agencies should also consider who in their organisation is under the Act.
Agencies should also prepare themselves for questions which the Hirers may ask of them (see below).
The following is the text of a letter which the Agency might write to the Hirer. The letter should be tailored appropriately by the Agency.
Suggested letter to the Hirer
“Dear ..
You may be aware that The Protection of Employees (Temporary Agency Work) Act, 2012, (“the Act”) came into law on the 16th May, 2012 but will have the pay element of the Act backdated to 5th December, 2011.
This Act provides that all agency workers are entitled to the same pay and basic working conditions as if they had been recruited directly by your organisation.
Thus, we would be grateful if you would provide us with the following information so that we can ensure compliance for all of us under the Act. In relation to the roles/temporary agency workers which we supply to your organisation;
• Please confirm that the rate of pay for roles/temporary agency workers in your organisation supplied by our Agency is equivalent to the rate you would pay them if they were directly hired by you? (* Pay is defined in the Act as; basic pay, shift premium, piece rates, overtime, unsocial hours worked and hours worked on a Sunday. This list is exhaustive).
• Please confirm the standard working hours per week of directly hired workers?
• Please confirm the standard working days per week of directly hired workers?
• Please confirm the annual leave entitlement for directly hired workers (excluding public holidays)?
The Act places a legal obligation on your organisation, the Hirer of agency workers to provide all information required by the us, the Agency, so that we can ensure that the agency worker receives their entitlements under the Act.
The Act also provides that as the hirer, you are obliged to provide access for the agency workers to collective facilities such as canteen, childcare and transport facilities. Please confirm what collective facilities are available to staff in this regard and ensure that these are available to the agency workers for the duration of their assignment.
As the hirer, you are also obligated to ensure that agency workers have equal access to information relating to job vacancies in your organisation as directly hired employees. Please confirm that this is the case.
In addition, please be advised that the Act requires us to ensure holiday pay is accrued and paid accurately to eligible agency workers.
The agency worker must be provided with the same number of day’s holidays as a directly hired employee in your organisation. Once you confirm the holiday entitlement we will provide you with an updated on holiday pay and its impact on charge-out rates as appropriate.
We would like to put in place any changes as quickly as possible, and as such we kindly request that you provide the above information by [date].
We wish to assure you that all information received from you for the purpose of complying with our obligations under this Act will be treated in the strictest confidence and in full compliance with our data protection obligations.
If you have any queries, please don’t hesitate to call/email me.
Yours sincerely
….”
Advice for Hirers
Hirers should equally review their contractual documentation with the Agency.
Hirers may also wish to consider appropriate contractual protections from the Agency in respect of that Agency’s compliance with the Act.
Hirers will need to determine who in their workforce is in scope from the Act. Hirers should establish from the Agency, what agency workers, if any, are working through a limited liability company as they will be out of scope.
Hirers need to consider what a directly recruited employee would have been paid as and from the 5th December 2011. This would involve gathering the information on the pay of directly recruited employees at the appropriate tome or the going market rate for such workers.
The organisation will need to setup a liaison person(s) with the agency.
Hirers should ask Agencies about the “Swedish Derogation” and should review what additional safeguards and protections the Agency will require from the Hirer to take on the liability of employing temporary workers and paying them between assignments.
