Temporary Agency Workers Regulations, 2024

L.N. 128 of 2024

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Temporary Agency Workers Regulations, 2024

IN EXERCISE of the powers conferred by Article 48(2) of the

Employment and Industrial Relations Act, the Minister responsible for

employment and industrial relations has made the following

regulations

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

and

Agency Workers Regulations, 2024.

commencement.

(2) The scope of these regulations is to transpose the relevant

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

and of the Council of 19 November 2008 on temporary agency work.

(3)

These regulations shall come into force on 1st January,

2025.

(1)

In these regulations, unless the context otherwise Interpretation.

requires:–

"the Act" means the Employment and Industrial Relations Cap. 452.

Act;

"assignment" means the period during which the temporary

agency worker is placed at the user undertaking to work

temporarily under its supervision, direction and control;

"outsourcing agency" means any natural person or a legal

person whose objects include the carrying out of all the relevant

activities as well as all activities ancillary or incidental thereto,

but do not include objects which are not compatible with the

services of an outsourcing agency, that enters into contracts of

employment or employment relationships with employees and

that assigns, whether on a regular or on an irregular basis, the

employees to user undertakings to work there temporarily, by

being physically present at the premises of the user undertaking

or working remotely, under the supervision, direction and control

of the outsourcing agency, whether or not such activity is the

main or ancillary activity of the outsourcing agency;

"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,

direction and control;

"temporary work agency" means any natural person or

legal person whose objects include the carrying out of the

relevant activities as well as all activities ancillary or

incidental thereto, but do not include objects which are not

compatible with the services of a temporary work agency, that

enters into contracts of employment or employment

relationships with temporary agency workers and that

assigns, whether on a regular or on an irregular basis, the

temporary agency workers to user undertakings to work there

temporarily under their supervision, direction and control,

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, direction and control of

whom a temporary agency worker works temporarily.

(2) Subject to the provisions of sub-regulation (1), 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 shall 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, whole-time, part-time

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

on an irregular basis, to user undertakings to work temporarily

under their supervision, direction and control;

(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 or 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

a n y t h i n g t o t h e c o n t r a r y, t h e u s e r u n d e r t a k i n g s h a l l n o t be

considered as the employer of the temporary agency worker.

(3)

These regulations shall not apply

(a) to

employment contracts or relationships

concluded under a specific public or publicly supported

vocational training, integration or retraining programme; and

(b) in each of the cases where a licence is not required

under the Employment Agencies Regulations.

(4) In the event of any difference in the basic working and

employment conditions applicable in any individual contract or in any

collective agreement applicable by virtue of the employment

relationship arising between the temporary agency worker and the

temporary work agency and those applicable at a user undertaking, the

most favourable basic working and employment conditions shall

prevail and be applicable to the temporary agency worker.

(1) The basic working and employment conditions of Equal treatment.

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 o t h e r l e g i s l a t i o n o r b y v i r t u e o f a n y

a p p l i c a b l e c o l l e c t i v e agreement.

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

working and employment conditions" means such conditions as

limitedly relate to

(a)

rate of remuneration;

(b)

the duration of working time;

(c)

overtime;

(d)

rest breaks;

(e)

rest periods;

(f)

night work;

(g)

statutory annual leave entitlements;

(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 sub-regulation (2)(a), "rate of

remuneration" means remuneration or earnings payable to the

worker by such worker’s employer, that are, the basic wage, any

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

other law, any statutory bonuses, statutory allowances and any other

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.

(4) Without prejudice to the foregoing provisions of this

regulation

(a) the provisions of article 27 of the Act shall not apply

to temporary work agencies to the extent that any inequality may

arise from any difference in the rate of remuneration; and

(b) no claim for any discriminatory treatment may be

made by any temporary agency worker to the extent that any

inequality may arise from any difference in the basic working

and employment conditions, of temporary agency workers

engaged by the same temporary work agency who work in the

same class of employment, in the event that:-

(i) any such temporary agency workers are

assigned with different user undertakings in order to

perform their work; and, or

(ii) any such temporary agency workers are not

assigned with any user undertaking when any such

difference arises in comparison with other temporary

agency workers who are so assigned

Provided that if the rate of remuneration and, or basic

working and employment conditions of the temporary agency worker

are more favourable than those of a comparable employee of the user

undertaking, the rate of remuneration and, or basic working and

employment conditions of the temporary agency worker shall prevail

and be applicable to the temporary agency worker.

Provided further that, in such case, employees engaged

directly by the user undertaking shall have no right to claim a breach

of the principle of work of equal value or on the basis of

discriminatory treatment, in relation to the circumstances

contemplated in this proviso

Provided further that if the rate of remuneration and, or the

basic working and employment conditions of the temporary agency

worker are less favourable than those of a comparable employee of the

user undertaking, the rate of remuneration and, or the basic working

and employment conditions of the comparable employee of the user

undertaking shall prevail and be applicable to the temporary agency

worker, whereupon every measure shall be taken to ensure that the rate

of remuneration and, or basic working and employment conditions are

adjusted accordingly. In default, temporary agency workers shall have

a right to file a claim against their employer for failing to comply with

this obligation.

(5) Notwithstanding the provisions of this regulation, if the

temporary agency workers or employees within a user undertaking be

covered by collective agreements where any such agreement provides

more favourable rates of remuneration and, or basic working and

employment conditions than another, the collective agreement with the

most favourable rates of remuneration and, or basic working and

employment conditions shall prevail and be applicable to the

temporary agency workers.

(6) No provision within these regulations shall be interpreted

to permit any form of direct or indirect pay discrimination based on

gender among employees, including temporary agency workers.

(1) The

user undertaking shall

inform the Access to

temporary agency worker assigned to it of any vacant posts in the employment.

user undertaking in order to give such worker the same

opportunity as other workers in that undertaking to find permanent

employment.

(2) The information w i t h r e g a r d t o v a c a n t po s t s

mentioned in sub-regulation (1) 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 or for the assignment to a user undertaking as stipulated

in this regulation.

(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), 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 the provisions of regulation 4

(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 w o r k a g e n c y a n d t o p a r t i c i p a t e i n a n y t r a i n i ng

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, and of the Employee

(Information and Consultation) Regulations, and for the purpose of

determining a collective redundancy in accordance with article 37

of the Act and the Collective Redundancies (Protection of

Employment) Regulations.

Without prejudice to the Act and to the regulations issued Information to

thereunder, and in particular to the Employee (Information and worker

representatives.

Consultation) Regulations, the user undertaking must provide S. L. 452.96.

suitable information on the use of temporary agency workers when

p r o v i d i n g i n f o r m a t i o n o n t h e e m p l o y m e n t si t u a t i o n i n 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 Right to receive

provide a written declaration to a temporary agency worker who a declaration.

requests such declaration in writing and who considers that the

agency may have treated such worker in a manner which breaches

the provisions of regulation 4.

(2) Such declaration shall state the reasons for any difference

in treatment and shall be provided within twenty-one (21) days

from the date of the request.

(3) A written declaration made in terms of this regulation shall

be admissible as evidence in any proceedings under these regulations.

(1) The temporary agency worker may file a complaint Complaints to

to the Industrial Tribunal alleging that the temporary work agency the

Tribunal.

has infringed a right conferred on such worker by these regulations.

(2) Without prejudice to the disposition of sub-regulation (3),

the Industrial Tribunal shall not consider a complaint filed in terms of

this regulation provided that said complaint is not filed within four (4)

months, which shall run from the date of the least favourable

treatment.

(3) Where the worker files 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 Punishments.

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).

(1) The provisions of regulations 3 to 12 shall apply

mutatis mutandis to any outsourcing agency and its employees, where

the outsourcing agency assigns employees to user undertakings to

work there temporarily, by being physically present at the premises of

the user undertaking or working remotely, under the supervision,

direction and control of the outsourcing agency, whether or not such

activity is the main or ancillary activity of such outsourcing agency,

and this shall be without prejudice to any other relevant provisions in

any regulations, orders or other subsidiary legislation made under the

Act or any other law, including but not limited to the Employment

Agencies Regulations.

(2) For the purpose of this regulation, any reference to

temporary agency workers shall be construed as referring to

employees of outsourcing agencies.

The Temporary Agency Workers Regulations are hereby

being repealed without prejudice to anything done or omitted to be

done thereunder.

€0.72