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Ireland – Retrospective effect of Agency Work Bill may be unconstitutional

16 January 2012

The Temporary Agency Work Bill 2011 was published on 16 December 2011. The Bill is not as detailed as might have been expected and is liable to considerable amendment as it proceeds through the lower and upper houses of parliament (Oireachtas).

The Bill provides that agency workers should receive equal treatment with comparable directly recruited employees of the hirer company in which the agency workers are assigned.

The Bill purports to have retrospective effect back to 5 December 2011 except for the specified provisions, which will only have effect from the date of enactment in 2012. These specified provisions relate to the offence of agencies charging fees to agency workers for placements. The duty of the hirer to provide enough information to the employment agency to allow the employment agency to ensure that the agency worker is receiving equal treatment with comparable direct recruits, and Part 4 relating to whistle blowing, penalisation and redress.

According to the Irish Business and Employers Confederation (IBEC), there is a strong case that this purported retrospective effect is unconstitutional. IBEC is opposed to the application of the principle of direct effect to the private sector. It says that there is no basis in European or Irish law for imposing a retrospective burden on private sector companies. It is not necessitated by the Directive and purports to retrospectively impose a liability on private sector entities.

  • Hirers and agencies were denied the opportunity to make contingency plans as they did not know what the terms of the legislation would be.
  • Employers still do not know what categories of worker may be included or excluded.
  • Until the legislation is passed into law, employers cannot know for certain what liability they may be accruing in respect of agency workers.

IBEC is strongly of the view that the Minister should propose that the legislation apply only to agency workers starting new assignments after 5 December 2011, to avoid many of the legal, constitutional and organisational problems with the current proposal.

To read the Protection of Employees (Temporary Agency Work) Bill 2011, please click here


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