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Temporary Agency Workers Directive
The transposition deadline for the EU Directive on Temporary Agency Work into Irish law was 5 December 2011. Legislation has not yet been enacted to implement the Directive into Irish law. Furthermore, the Social Partners have not been able to agree a derogation under Article 5.4 of the Directive, which would have provided for a qualifying period before agency workers’ entitlements would accrue. This means that, due to the doctrine of direct effect, the Directive may automatically take effect against State bodies from 5 December 2011, depending on certain factors. If so, since public sector employers are emanations of the State, agency workers currently engaged in the public sector will be entitled to the same basic pay and working conditions from 5 December 2011 as if they had been directly recruited.
The doctrine of direct effect does not apply to private sector employers. Therefore, such employers are not obliged to observe the terms of a directive until national implementing legislation has been enacted. On Thursday 1 December 2011, the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD wrote to employers' representative bodies to confirm that legislation to transpose the Directive is now being finalised and, significantly, to propose that the legislation will have retrospective effect to 5 December 2011. This is, in our view, a surprising approach to take and may be open to subsequent challenge.
However, in light of the Minister’s proposal, and given that it is possible that the legislation will be enacted before the end of the month, employers should begin to make arrangements to ensure that the principles of equal treatment for all temporary agency workers are recognised going forward, and to make some sort of accrual for existing agency workers from 5 December 2011 onwards. While this might present some difficulties in practice, the Minister has indicated that the implementing legislation will define "pay" as including basic salary, shift and overtime premia, piece rates, unsocial hours premia, and Sunday premia, but will exclude bonus payments, pension contributions and sick pay.