Temporary Agency Workers Regulations, 2010

L.N. 461 of 2010

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Temporary Agency Workers Regulations, 2010

IN exercise of the powers conferred by article 31 of the

Employment and Industrial Relations Act, the Prime Minister has

made the following regulations-

(1) The title of these regulations is the Temporary Title, scope and

Agency Workers Regulations, 2010.

commencement.

(2) The object of these regulations is to give effect to

the relevant provisions of Directive 2008/104/EC of the European

Parliament and of the Council.

(3) These regulations shall come into force on the 5th

December 2011.

(1) In these regulations, unless the context otherwise Definitions.

requires-

“the Act” means the Employment and Industrial

Relations Act;

“assignment” means the period during which the

temporary agency worker is placed at the user undertaking to

work temporarily under its supervision and direction;

“temporary agency worker” means a worker who has

entered into a contract of employment or an employment

relationship with a temporary work agency and who is

assigned, whether on a regular or on an irregular basis, to a

user undertaking to work temporarily under its supervision

and direction;

“temporary work agency” means any natural or

legal person who enters into contracts of employment or

employment relationships with temporary agency workers

and who assigns, whether on a regular or on an irregular

basis, the temporary agency workers to user undertakings to

work there temporarily under their supervision and direction,

whether or not such activity is the main or ancillary activity

of the temporary work agency;

“user undertaking” means any natural or legal person

for whom and under the supervision and direction of whom a

temporary agency worker works temporarily.

(2) Subject to the provisions of sub-regulation (1) of

this regulation, terms and expressions used in these regulations

shall, unless the context otherwise requires, have the meaning

assigned to them in the Act.

(1) These regulations apply to

(a) workers who have entered into a contract of

employment or an employment relationship with a temporary

work agency, whether on an indefinite, a whole-time, a part-

time or a fixed term basis, who are assigned, whether on a

regular or on an irregular basis, to user undertakings to work

temporarily under their supervision and direction

Provided that unless otherwise specified in a contract of

employment, a temporary agency worker shall be presumed

to have entered into an indefinite contract of employment or

an indefinite employment relationship with a temporary work

agency;

(b) public and private undertakings engaged in

economic activities, whether or not they are operating for

gain, which are temporary work agencies or which perform

the same functions as temporary work agencies, whether

as a main or as an ancillary function or which are user

undertakings.

(2) For all intents and purposes of the Act, any

regulations made thereunder and under any other law, the

temporary work agency shall be considered the employer of the

temporary agency worker, and such temporary agency worker shall

be considered the employee of the said temporary work agency,

and the provisions contained therein shall apply mutatis mutandis

to such a contract of employment or employment relationship, and

that notwithstanding anything to the contrary, the user undertaking

shall not be considered as the employer of the temporary agency

worker.

(3) These regulations shall not apply to employment

contracts or relationships concluded under a specific public or

publicly supported vocational training, integration or retraining

programme.

(4) These regulations shall be applicable without

prejudice to the introduction and implementation of more

favourable provisions in any individual contract or in any collective

agreement.

(1) Without prejudice to the provisions of regulation Equal treatment.

5, 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 by that undertaking to occupy the same job, by

virtue of the Act, or any regulations issued thereunder or under

any other legislation or by virtue of any applicable collective

agreement.

(2) For the purposes of these regulations, the term

“basic working and employment conditions” means such conditions

as limitedly relate to

(a) pay;

(b) the duration of working time;

(c) overtime;

(d) rest breaks;

(e) rest periods;

(f) night work;

(g) annual leave;

(h) public holidays;

(i) the protection of pregnant women, women who

have just given birth or who are breastfeeding;

(j) the protection of children and young people; and

(k) equal treatment for men and women and any action

to combat any discrimination based on sex, race or ethnic

origin, religion, beliefs, disabilities, age or sexual orientation.

(3) For the purposes of paragraph (a) of sub-regulation

(2) of this regulation, “pay” means remuneration or earnings

payable to the worker by his employer, that is, the basic wage, any

statutory cost of living increase payable under the Act or under any

other law, any statutory bonuses and allowances payable under the

Act or under any other law, the payment for overtime work at the

applicable rate, payment in respect of public holidays, payment in

respect of annual leave, payment in respect of maternity leave and

any applicable shift allowances.

(1) Insofar as it relates to pay, regulation 4 shall not

have effect in relation to a temporary agency worker who has an

indefinite contract of employment or an indefinite employment

relationship with a temporary work agency and is paid by the

temporary work agency between assignments.

(2) With regards to a temporary agency worker who

is not paid by the temporary agency in between assignments,

regulation 4, insofar as it relates to pay, shall not apply for the first

four weeks of an assignment if an assignment lasts fourteen weeks

or more

Provided that if the temporary agency worker is

subsequently replaced, the temporary agency employee assigned

as a replacement will have equal treatment regarding pay from the

first day of the assignment.

(1) The user undertaking shall inform the temporary

agency worker assigned to it of any vacant posts in the user

undertaking so as to give such worker the same opportunity as

other workers in that undertaking to find permanent employment.

(2) The information mentioned in sub-regulation (1)

hereof shall be displayed in a suitable place in the user undertaking

and shall be given in a timely manner in order to allow the worker

to apply for the vacancy.

(3) Any clause in any contract or agreement

prohibiting or having the effect of preventing the conclusion of a

contract of employment or of an employment relationship between

a user undertaking and a temporary agency worker shall be null

and void.

(1) No payments or charges shall be demanded or levied

on any temporary agency worker by the temporary employment

agency in consideration for recruitment by a user undertaking or

in consideration for concluding a contract of employment with a

user undertaking.

(2) No deductions shall be made from the wages

of a temporary agency worker by the temporary employment

agency whether in consideration of the circumstances mentioned

in sub-regulation (1) of this regulation or in consideration of

other circumstances, except and in so far as such deductions are

permissible under the Act and the regulations issued thereunder.

Without prejudice to regulation 4 of these regulations

(a) the temporary agency worker shall be given access

to the amenities or collective facilities in the user undertaking,

in particular any canteen, child care facilities and transport

services, under the same conditions as workers who have

been employed directly by the user undertaking, unless the

difference in treatment is justified by objective reasons;

(b) the temporary agency worker shall be entitled

to participate in vocational training programmes provided

by or on behalf of the user undertaking in the same manner

as workers who have been employed directly by the user

undertaking, unless the difference in treatment is justified by

objective reasons

Provided that these rights do not prejudice the right of

the temporary agency worker to have access to such facilities

at the temporary work agency and to participate in any

training programme provided by the temporary work agency

between assignments.

The temporary agency worker, only in so far as the

temporary work agency is concerned, is to be included in the

calculations for determining thresholds for the purposes of worker

representation, for the purposes of information and consultation

rights in terms of article 38 of the Act, of the Transfer of Business

(Protection of Employment) Regulations, 2002 and of the

Employee (Information and Consultation) Regulations, 2006 and

for the purpose of determining a collective redundancy in terms of

article 37 of the Act and the Collective Redundancies (Protection

of Employment) Regulations, 2002.

Without prejudice to the Act and to the regulations

made thereunder, and in particular to the Employee (Information

and Consultation) Regulations, 2006, the user undertaking must

provide suitable information on the use of temporary agency

workers when providing information on the employment situation

in that undertaking to bodies representing workers in terms of the

Act and of regulations issued thereunder.

(1) It shall be the duty of the temporary work agency

to provide a written statement to a temporary agency worker who

requests such statement in writing and who considers that the

agency may have treated him in a manner which infringes a right

conferred on him by regulation 4 of these regulations.

(2) Such statement shall state the reasons for any

difference in treatment and shall be provided within twenty-one

days from the date of the request.

(3) A written statement made in terms of this regulation

shall be admissible as evidence in any proceedings under these

regulations.

(1) The temporary agency worker may present a

complaint to the Industrial Tribunal that the temporary work

agency has infringed a right conferred on him by these regulations.

(2) Subject to the provisions of sub-regulation (3),

the Industrial Tribunal shall not consider a complaint under this

regulation unless it is presented within a period of four months,

beginning from the date of the less favourable treatment.

(3) Where the worker presents a complaint under this

regulation and the agency claims that the treatment is justified on

objective grounds, it shall be incumbent on the agency to prove that

the less favourable treatment is so justified on objective grounds.

Any person contravening the provisions of these

regulations shall be guilty of an offence and shall, on conviction,

be liable to a fine of not less than five hundred euro (€500) and not

exceeding two thousand and three hundred and twenty-nine euro

(€2,329).

€0.56