Agency work act 2012 and experience

crodeghin

In relation to the Agency work act 2012, usually employers and employment solicitors in the different websites consider that the 5th of Dec 2011 is the reference date to consider the correct pay (for agency workers already employed), as if the workers was hired directly from the Hirer in that date (so the prev experience is lost).
I was reading again and again the directive..I am not fully convinced that this "interpretation" is correct.

If we see at the act, section 6.1 and 6.3:

http://www.irishstatutebook.ie/pdf/2012/en.act.2012.0013.pdf

6.—(1) Subject to any collective agreement for the time being
standing approved under section 8, an agency worker shall, for the
duration of his or her assignment with a hirer, be entitled to the same
basic working and employment conditions as the 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 similar to, the work that he or she is
required to do during that assignment.

6.(3) Where the assignment of an agency worker commenced
before 5 December 2011 and ended or ends on or after that date,
that assignment shall, for the purpose of determining the agency
worker’s basic working and employment conditions in accordance
with subsection (1), be deemed to have commenced on that date.


It seems that 6.1 is just saying that you should be paid like if you was hired directly to do the same job. Hired when? There is no indication of hired on 5th of Dec 2011. Consider that the initial draft of the Act was including the comparator (paid like a person doing the same job), but, as explained by Minister in the Dail, the comparator was deleted :

Minister Bruton said: We used the comparator in the first formulation of the legislation. We then tried to modify it to take account of different things that might make the comparator not a relevant person with whom to compare the new recruit being taken on as an agency worker. As Deputy O’Dea stated, this led to the creation of a complex set of different provisions. Following further consideration of concrete examples, we realised this provision would create more uncertainty in terms of where people stood. If a person is recruited as an agency worker, he or she cannot be recruited on terms different from those if the employer went out into the market that same day and had a direct recruit. That is what is provided for in the directive. We sought to use the comparator and then make modifications to the comparator to take account of different things which might make those two workers different because one was maybe five years earlier. In practice, it is better to revert to the wording of the directive. It is clearer in its application.

Now, The european directive is not giving a hiring date, or suggesting that the 5th of December 2011 should be used for that. That is just the starting date of the application of the law.

Is the second point 6.3 that is probably causing the confusion (or clarity depending of the point of view). As the Act was enacted in 2012, there was a need to include a reference to rectroactivity (for pay element), so that agency workers had to be paid from that time.

But I can't see in the wording
"that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date"

a statement saying that the pay is like if you was hired at that date. It looks more like a statement to consider the retroactivity of payments.

I could be wrong, let me know your idea.

crodeghin

any idea?