Because all Agency workers are private sector employees, the EU Agency Workers Directive as it stands only applies to public sector employees. Until such time as the Minister transposes the EU Directive into Irish Law, there will be no effect on Agency Workers in Ireland as they are all private sector employees of Recruitment Agencies.
With regard to what Employers and Recruitment agencies need to do will very much depend on what the Minister does but also depends on what the Social Partners do with regard to the derogation period before equality kicks in. There is currently no agreement which means that equality of treatment for agency workers will commence from Day One of the transposition of the Directive into Irish Law. There is excellent advice available on the confused legalities of the situation from Ronan Daly Jermyn Solicitors, who have for many years been providing excellent support to the recruitment community in Ireland.
Of greatest concern to me is how the relevant Government departments collectively interpret the transposition - NERA have already decided that “Equality” does not apply to sick pay, pensions etc. as indicated in their published notices in the Sunday papers dated 4th Dec 2011. To illustrate my concern, let me share an anecdotal experience with you.
The Citizens Advice Bureau (CAB) advised one of our temps that she was entitled to paid leave to attend ante-natal classes. In seeking to clarify the legislative position on this, I telephoned the Dept of Enterprise Trade and Innovation (DETE – the body who issue recruitment agency licences) and was advised me that I needed to speak to NERA (National Employment Rights Authority). I called NERA, who advised me that I needed to talk to the Equality Authority, who eventually confirmed that CAB’s advice was correct although nobody could send me an extract of the relevant legislation covering this edict. The fact that it took three Govt departments to answer a simple question, does not bode well for a swift and cohesive transposition of an extremely complicated piece of EU legislation. Remember that this legislation was not designed for the employment flexibility of the Irish Economy, but rather for the heavily unionized German and French economies (a bit like our current problems with the Euro).
The transposition of the Directive should encompass maximum flexibility and as a minimum, with or without the derogation period, granted by the Social Partners, should take due note of the fact that all “Permanent” employment positions are subject to probationary periods. The obvious consequence of this assertion is that equal treatment for agency workers would not apply until and at least a time period equivalent to the probationary period for permanent employees in the User Enterprise had expired.