Locum Pharmacy & the Protection of Employees (Temporary Agency Work) Act 2012
Locum Pharmacy & the Protection of Employees (Temporary Agency Work) Act 2012
The 16th of May 2012 saw the long awaited arrival of the Temporary Agency Workers Act 2012.
An EU directive now transposed into Irish law, following a lengthy consultation period, it is undoubtedly a big step forward in terms of ensuring equity in the treatment of agency staff in comparison to their directly employed colleagues. While welcomed by many for this reason, there are some obvious concerns around the long term implications given the economic climate and the financial constraints many employers find themselves in at present. However for the circa 35,000 strong temporary agency workers engaged by employers across the public and private sector in this state, this is very welcome news.
What is included
In essence this piece of legislation puts into statute, the entitlement of temporary workers (employed through a recruitment agency working for a third party) to be treated equally on a number of key points.
The Directive describes the principle of equal treatment as follows.
“The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user [hirer] undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.”
The key points are:
Working time: This includes the duration of working time, rest periods, breaks, night work, annual leave and public holidays
Pay: This is defined as basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work.
Access to facilities: Temporary agency workers must have equal access to facilities such as childcare, canteen and car parking. They also must have equal access to information about permanent employment opportunities.
There is no qualifying period, unlike ourUKcounterparts where a 12 week period of employment is necessary before the entitlements come into effect for an agency worker. Under Irish law agency workers will have their entitlements in respect of the above from day one, even if the assignment is only for day one. This point is of fundamental importance for the Locum Pharmacist whose assignments can often be of a very brief duration with a variety of employers.
It is of course important to be cogniscent of the fact that locum/temporary Pharmacy staff, working on an agency basis, have always been protected under existing legislation. In this respect entitlements, such as annual leave accrual and public holiday pay, are not new even for the shortest of locum assignments.
What is not included
Not covered under this legislation are entitlements in respect of sick pay, pensions or financial participation schemes, bonus pay, maternity top up, ex gratuity redundancy payments.
Challenges & Limitations
In companies which have clearly defined terms and conditions of employment, as will often be the case with larger organizations (such as defined pay scales, set annual leave entitlements etc.), the comparator process will be a relatively straight forward one. In companies with less clearly defined structures, establishing a comparator may be a trickier process, especially where no comparable grade of staff is employed. However the directive very clearly states that no flesh and blood equivalent need exist in order for an agency worker to have entitlements in respect of basic working and employment conditions. Even in instances where a comparable grade does exist it may have to be taken into account that specific staff members have negotiated their individual terms of employment based on certain qualifications, skills and experience. Longevity of service and loyalty increments may also skew figures in terms of a direct comparison.
What next
It is now up to every Recruitment Agency to ensure its compliance with the directive, in partnership with the employer (end user), in a timely manner and backdate pay and annual leave as appropriate.
Under the legislation any positive adjustments in respect of pay must be backdated to the 5th of December 2011, with any change in annual leave accrual taking effect from the 16th of May 2012. An agency workers pay rate cannot be negatively affected as a result of this comparator process.
At present Cpl Healthcare, in partnership with each individual employer, is working to establish where changes may need to be made. For some temporary Pharmacy staff there will be no adjustments necessary; however others will enjoy an increase in their pay and/or annual leave over the coming weeks.
For further information see: https://www.citizensinformation.ie/en/employment/types_of_employment/full_time_employment/agency_workers.html or contact your employment agency for advice and information.
