Equal Rights for Agency Workers
An increasing number of employers are using 'agency workers' to circumvent employment and equality legislation. Because of gaps in Irish legislation it is entirely possible for an agency worker to be discriminated against, to be paid less and have worse working conditions. There are only three countries in Europe where this discrimination is legal - Hungary, the UK, and Ireland.
On December 5 last, Ireland and the UK blocked an EU attempt to introduce a draft directive that would have outlawed this discrimination and established a basic threshold of rights, that would apply to such workers across the EU.
Congress has demanded that government introduce measures that enshrine the equal treatment principle and has placed the agency issue at the heart of our platform for any upcoming national talks.
Standards in the EU
The vast majority of EU member states have dealt with the problem of employers using agency work to pay less by introducing laws to provide for equality of employment between agency workers and permanent staff. Referred to as the 'non discrimination principle' the majority of laws around Europe provide that agency workers must receive the same terms and conditions as comparable permanent employees in the user enterprise.
Agency workers must be paid the same and give same terms and conditions as permanent workers in the user enterprise.
The law was modified in 1999 to ensure pay parity with that of the collective agreement of the sector to which agency worker is assigned.
The law establishes pay and conditions parity with permanent workers.
An agency worker's pay must not be lower than that set by the relevant collective agreement applying to the user company staff.
The equal wages clause can be varied but only by a collective agreement within the employment agency.
The pay of an agency worker is linked to what a post probationary permanent employee with the same qualifications would earn in that post. Agency workers are also eligible for an end of assignment 10% of gross pay earned during the assignment and compensation equivalent to a further 10% in lieu of paid holidays which they are not entitled. In addition there is a compulsory levy of 2% of payroll costs for training.
Since 2004, agencies are obliged to guarantee their workers the same pay and employment conditions as permanent staff in the user enterprise unless a collective agreement is made to the contrary.
The majority of new member states have also introduced laws to guarantee equal pay and treatment for agency workers, including Poland, Romania, Slovakia, Czech Republic, Slovenia.
In 2001 Hungary introduced a definition in their labour law of 'employee leasing' and clarified the contractual position and obligations of the parties but stopped short of imposing an equal pay principle.
The Equal Treatment Principle
Many member states further reinforce the equal treatment principle with additional measures to ensure that agency work is used for bona fide reasons:
- Seven member states define in law specific reasons for which an employer may have recourse to agency workers;
- Five limit the duration of agency work;
- Four set limits to the sector and occupation usage.
In Spain, agency work is prohibited in certain sectors, including the public service sector and for 'dangerous' work.
In Poland legislation was introduced in 2003 to provide that the maximum employment period is an aggregated 12 months, over a period of 36 consecutive months.
In Portugal and Belgium the maximum permitted duration for use of agency workers is connected to the reasons for use.
In Portugal where the justification is the temporary substitution of permanent workers then the duration must correspond to the duration of the justifying cause.
In Greece a user company may not employ agency workers for a total period of over eight months, if the period is exceeded the contract between the agency worker is automatically transformed into an open ended (contract of indefinite duration) between the agency worker and the client firm.
In France neither the objective nor the outcome of agency working can be to fill a post for a 'lengthy period' of the client company and the maximum duration in any case is 18 months renewals included.
In Slovenia, agency workers cannot be used by the user firm 'continuously' or, to replace striking workers or in circumstances where there has been collective redundancies in the past year or in other cases determined by sectoral agreement.
In the Czech Republic an agency may assign an employee to the same user for a maximum of 12 calendar months, unless the employee requests a longer period.
In Sweden, collective agreements are concluded with representative organisations of agencies, by sectors. Typically collective agreements provide that 75% of full monthly salary must be paid whether the agency work is engaged in work or not. The white collar agency agreement provides for 80% of their normal weekly wage.
Congress Campaign Demands
Government must act now to improve the situation of the thousands of agency workers in Ireland. They should introduce meaningful legislation in 2008 that will:
- Provide agency workers with an entitlement to equal treatment, pay and conditions with permanent staff, so that they cannot be used to drive down pay and conditions generally or to undermine equality rights;
- Restrict the amount of time that an employer can fill a post with agency staff - insecure agency work must not be allowed to replace secure employment;
- Prohibit the use of agency workers in some circumstances e.g to replace striking workers;
- Make both the employment agency and end user employer jointly liable so that workers can ensure enforcement of their rights;
- Prohibit agencies from charging the employee for any aspect of the recruitment or placement process and prohibit unfair discriminatory 'profiling' practices;
- Licence employment agencies to a Statutory Code of Practice and require them to place a 'Bond' so that funds are available to secure the payment of wages owed to agency workers;
- Require any agency operating in Ireland (no matter where they are based) to be licensed and comply with the Code;
- Make it an offence for employers to use unlicensed agencies. This will ensure that agencies operating outside the jurisdiction, or the internet, will be included.
- Increase sanctions on employers who ignore workers rights and improve redress for the workers concerned.