Information from IBEC’s forum on the Temporary Agency Workers Directive 06 December 2011

Questions for Hirer Companies which are assessing their liabilities under the New Temporary Agency Work Legislation.

Attended the above forum this morning and below is some useful questions for companies to ask themselves in relation to the above!

1. Name of the company of subsidiary

2. Number of temporary agency workers
It is important that we are talking about temporary agency workers and not self-employed contractors or managed services contracts. On the other hand, note that some entities are described as ‘contractors’ but are actually acting as temporary work agencies. Note that some employment statutes (and this one is likely to be no different) provide functional definitions of agency work and the employment agencies – that is, a company is an ‘agency’ if it is in the business of providing workers to work under the supervision and direction of a hirer company. Companies which are not registered as agencies might still be deemed to be agencies.

3. Grades or categories of those temporary agency workers.

4. Are there any comparable direct results
In respect of each grade or category, are there direct recruits also working in that grade or category? This is very important. If we have never hired a direct recruit for that role, there is a good argument that there are no comparable terms for the agency workers. Similarly, if we stopped hiring direct recruits at a certain point in time, there is also a good argument that there are no comparable terms for the agency workers.

5. Are there established terms and conditions which govern what direct recruits do earn or would earn?
For example, do we set out pay scales in company handbooks, collective agreements or other binding general provisions? Are salaries linked to public sector scales?

6. Calculation of ‘pay’ which the agency worker should get
If there are established terms, the pay related elements of these need to be broken down into two categories. The first is the category which is going to be included in the definition of ‘pay’. These are as follows
• Basic pay
• Shift premium
• Piece rates
• Overtime premium
• Unsocial hours premium
• Sunday premium where a Sunday is worked and a premium is normally paid to a direct recruited employee.

The second category is made up of all pay related terms which are not included in the definition of ‘pay’. These include bonus payments, pension, profit sharing, sick pay provision, maternity pay and so on. It will not be necessary to provide temporary agency workers with these benefits.

7. Calculation of ‘pay’ which the agency worker actually does get
Hirer companies may not have this information to hand, but they need to find it out. Hirers need the information to be broken down into the same categories as described in question 6 above, so that a direct comparison can be made.

Human Resources Made Simple

If you are starting up a small business or have one in place and are not sure how to put together Employment Contracts, an Employee Handbook or what are your employees’ basis entitlements please contact BT and Associates to discuss.

By taking responsibility and ensuring that your employees receive their basic employment rights, which are governed largely by legislation, you are protecting your business and yourself from any difficulties.

 Below is a simple checklist outlining for employers what is required under the Terms of Employment (Information) Act 1997, one should have in a typical Employment Contract.

 The Terms of Employment (Information) Act 1994 provides that an employer must issue their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment.  It must include the following:

  •  Name and address of employer and employee;
  • The address of the employer.
  • Role/Title or nature of work
  • Date of commencement of employment
  • Specified  Term, Specified Purpose, Contract of Service, Contract for Services      Commencement – date of expiry if fixed term
  • Duties and responsibilities.
  • Reporting to.
  • Payment of deductions, method, pay periods, rate of pay, reviews, expenses and overtime.
  • Probation.
  • Any terms or conditions relating to Pensions and Pension Schemes.
  • Place of work and any conditions on relocation.
  • Hours of work, overtime, breaks, holidays.
  • Sick leave – employee obligations and entitlement or otherwise to pay.
  • Grievance,  dispute resolution.
  • Discipline,  grounds for summary dismissal.
  • Termination – notice periods, Grounds and obligations.
  • Collective Agreements where applicable.
  • Retirement Date or Age.
  • Unfair Dismissals waiver (fixed term contracts).
  • Date of offer expiry.

 This list is not exhaustive and is not a legal interpretation.

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