TEMPORARY AGENCY WORKERS REGULATIONS *

SUBSIDIARY LEGISLATION 452.106

TEMPORARY AGENCY WORKERS

REGULATIONS *

5th December, 2011

LEGAL NOTICE 461 of 2010, as amended by Legal Notice 272 of 2018.

(1) The title of these regulations is the Temporary Agency

Workers Regulations.

(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

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 at the place of work of such undertaking;;

"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

at the place of work of such undertaking;

"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, 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 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 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

*These regulations have been repealed by Legal Notice 128 of 2024.

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

to user undertakings to work temporarily at the place of

work of such undertaking

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

an yt hin g t o the con trary, th e u ser und ert aki ng shal l n ot 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) 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 sub-regulation (2)(a), "pay" means

remuneration or earnings payable to the worker by his employer by

virtue of the Act, any order or regulation issued thereunder or by virtue

of an applicable collective agreement, 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 for the first four weeks of an assignment, whatever its

duration.

(2) Notwithstanding what is stated in sub-regulation (1),

whenever a temporary agency worker is replaced during the

aforementioned four weeks, and during any time after those four

weeks, the temporary agency employee assigned as a replacement

will have equal treatment regarding pay from the first day of the

assignment

Provided that if the replacement takes place within a six month

period, such period shall be deemed to be a continuous 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) 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)

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

(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, and of the Employee

(Information and Consultation) Regulations, 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.

Without prejudice to the Act and to the regulations made

thereunder, and in particular to the Employee (Information and

Consultation) Regulations, the user undertaking must provide

suitable information on the use of temporary agency workers when

p ro vid ing in fo rm atio n on the emp loy men t si tuat io n i n t hat

undertaking to bodies representing workers in terms of the Act and

of regulations issued thereunder.

(1) I t 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).