Monday 5th December 2011 is the day when the EU Directive on temporary agency workers must be implemented into Irish law. The Directive is all about the entitlement of agency workers to equal treatment with all other employees, “employed” at the same workplace. Because the Social Partners have failed to agree with Minister Richard Bruton a derogation period, temporary agency workers are entitled to equal treatment from day one.

This legislation has huge implications for recruitment agencies supplying temporary workers, particularly to the Public Sector. The HSE have estimated that it will cost an extra EUR 33m per annum, equating to EUR 942.85 p.a for each of the 35,000 agency workers employed in the health service. So, it would appear that the recent re-tendering process which has driven down rates for health agency workers has been totally counter-productive as rates will have to be re-instated from Dec 5th.

The reality is that the Directive does not impact on private sector employers until such time as the Minister transposes the Directive into Irish Law. Because of the European Law Doctrine of Direct Effect, the EU law has direct effect in national law for public sector employers,which means that in the absence of Irish legislation, the EU Law (as is) applies to public sector employers in Ireland.

What has long been established in Irish law is that the Recruitment Agency is the Employer of the temporary agency worker and NOT the User Enterprise (eg. HSE). The clearly established position is that all employment entitlements of the agency worker are the responsibility of the recruitment agency (the employer) with the only exception being The Unfair Dismissal Act, which is the responsibility of the User Enterprise (the place of work), because the agency worker is under the direction and control of said User Enterprise.

So, because all agency workers are private sector employees, and I say this because I am not aware of the existence of any agency workers employed as public sector employees, the Minister could theoretically delay indefinitely the implementation of the Directive into Irish Law, in which case no equal treatment entitlement would arise. Perhaps, the Minister is entirely aware of this possibility, which might conveniently explain why there has been a failure to reach agreement with the Social Partners.