EMPLOYERS’ BODY Ibec has argued that parts of the Government’s new legislation governing the treatment of staff provided to companies by employment agencies is unconstitutional. Ibec is seeking several amendments to the Bill.
In essence, the legislation provides that agency workers should receive equal treatment with comparable directly recruited staff. The Government intends that it will apply retrospectively back to December 5th last year.
Ibec has argued that there “is a strong case that this purported retrospective effect is unconstitutional”. It says there is “no basis in European or Irish law for imposing a retrospective burden on private sector companies”.
Such a move was not required under the relevant EU directive on agency workers and represented the first time that legislation had sought to override existing commercial contracts, it said.
Ibec added that the problems were compounded by hirers and agencies being denied the opportunity to make contingency plans as they did not know what the terms of the legislation would be. Employers still did not know what categories of worker may be included or excluded when the Bill was passed.
Ibec also maintained that until the legislation was enacted, employers could not know for certain what liability may be accruing in respect of agency workers.
Director Brendan McGinty said Ibec was “strongly of the view that the Minister should propose that the legislation apply only to agency workers starting new assignments after December 5th, 2011, to avoid many of the legal, constitutional and organisational problems with the current proposal”.
Ibec also expressed concerns at the wording of part of the legislation dealing with the core provision of equal treatment.
“The Bill does not [at section 6 (1) or elsewhere] make express provision for legitimate distinctions between agency workers and comparable direct recruits.
“It cannot be the intention of the legislature for example, for an inexperienced agency worker to receive, on his or her first day of assignment, the same pay as a direct recruit with 10 years experience, who is at the top of the pay scale.”
Ibec said it also wanted more clarity on the definition of what constituted pay. “The definition of pay does not as written expressly exclude matters such as bonus payments and maternity top-up payments. The phrase ‘basic pay’ should be defined in a way which expressly excludes these matters.”
The employers’ body said it was concerned that the redress provisions were unduly onerous. It said the provision of two years remuneration in cases of minor or accidental breach was excessive.