The Temporary Agency Work Act provides for the principle of equal treatment for agency workers in respect of “basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or is similar to, the work that he or she is required to do during that assignment.” The provision was enacted on 16th May, 2012 but also allowed retrospection back to 5th December 2011 – the date the Oireachtas should have implemented the Agency Work Directive of 2008 from the European Commission.
In AWD 134, Robert Costello (SIPTU) v Team Obair, an appeal of a Rights Commissioner's decision which had said originally that the claimant’s case was not well founded, the Labour Court considered the point as to whether an agency worker employed as a forklift driver should be paid the same hourly rate as a forklift driver directly employed by the hirer (original company who engage the agency) . The difference in pay amounted to €5 an hour.
The Labour Court firstly observed that the points raised were “novel and are not governed by any authority of which the Court is aware”. The Court stated that it followed therefore, that the case would be decided on the basis of “first principles”, which in essence meant the determination could well set out the core principles for consideration in future similar cases.
The hirer had declared that the present going rate for the job for direct hires was that which was presently paid to the claimant. The Court in response noted that “The rates specified in the notice furnished by the hirer are precisely those paid by the Respondent. it is at least probable that the information furnished by the hirer is predicated on the assumption that if the respondent can employ labour on those rates, it could do likewise. If a bare statement based on such a premise were to be accepted as definitive, the purpose of the Act and that of the Directive would be seriously subverted and the protection which they are intended to provide would be rendered nugatory.”
The Court also factored in the industrial relations situation at the enterprise noting that there was in place a collective bargaining structure with SIPTU and the hirer and that “there would be little or no chance of it (SIPTU) agreeing to accept rates for the employees of the hirer in line with those currently paid by the respondent.”
The Court overturned the Rights Commissioner decision and adjusted Mr Costello’s rate to €18.50, with effect from December 5th 2011, amounting to €20,000 in retrospective pay.
Developing the purposive approach further, the Labour Court, in an appeal on a Rights Commissioner’s decision in 9 named appellants (represented by SIPTU) v O’Reilly Recruitment Ltd (AWD141) adjudicated in a case where there were no collective bargaining structures at the hirer, unlike Team Obair above. The Court examined section 2 further and specifically that part of the provision which read “basic working conditions…or any arrangement that applies generally in respect of employees or any class of employees, of a hirer, which includes pay.” The Court went on to say that it must apply the arrangement that applies generally to directly employed workers. It rejected the argument put forward by the respondent that the comparable rate of pay was €8.65 should the hirer have recruited directly. This was in contrast to the €10.08 presently paid to workers which the respondent claimed was historic and a reflection of long service of current direct employees. The Court said it “cannot substitute a hypothetical rate posited by the hirer for the actual rate of pay that in fact generally applies to directly employed workers doing the same work as assigned agency workers”. They said to do so would defeat the purpose of the Directive and of the Act and thereby could not be lawful.
The Court directed that the claimants’ rate of pay should be adjusted upwards to €10.08 per hour from the minimum wage rate which they were currently receiving. This was backdated to December 5th 2011.
These two cases illustrate how the Labour Court will seek to interpret Irish Employment Legislation, when necessary, through the prism of the original relevant European Directive, but as important also, these cases show the true value of Union membership for atypical workers.