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Will new workers rights be available to agency workers employed by the State itself? 

The Government continues apace with the introduction of new legislation in relation to work. Framed as radically progressive, the Government is legislating for new types of leave and new ‘rights’ for workers in response to the changing working environment, primarily spurred on by the covid pandemic and the necessity for more flexible working arrangements.

The latest proposal from the government is for unpaid leave for parents (or family members) to look after a sick relative. It sounds fair and reasonable.

Some workplaces deal with this as a form of force majeure leave – which is paid for a day. Others deal with it as annual leave. Others do what the government is forcing into law – providing unpaid leave for those who need it. Many employees are already ahead of the government.

Framed as part of ‘work-life balance’ laws, this is the latest to follow from the ‘right to disconnect’ and ‘the right to request to work remotely’. Additionally, the government is proposing to introduce a law to allow an employee to request flexible working time and part-time working if they desire it. The onus is on the employer to justify rejecting a request.

The government is making significant gestures at supporting workers ‘rights’. However, little considering is being given to employers, particularly those small and medium sized business who will really struggle under these new government-provided rights.

At the same time, the changes being made are already being driven by the employment market with employers responding to the new reality, rendering most government regulation on the matters, unnecessary – but it allows them to virtue signal without getting too much opposition.

Who will benefit from the majority of these new ‘work-life’ balance laws? Mostly it will be people in the type of roles that can already provide flexibility: primarily white-collar, office-based roles. For the majority on the lowest rung of the ladder – restaurants, shops – physical roles with the lowest pay and most in need of a break – there will be little benefit as they cannot request to work from home; they cannot request to work hours of their choosing: a shop assistant can’t suggest working a shift when the shop isn’t open!

However, the request for no-notice unpaid carer’s leave will be a benefit for those at this level – although they will hardly be in a position to afford taking the leave. And the businesses they work for will be in a position where they will need to source temporary staff to fill the important roles at short notice.

Speaking of temporary staff, it is interesting that the government is proceeding with these new workers rights at a time when the government itself has skeletons in its closet that ought to be looked at first.

It is worth asking how many government staff are recruited and employed through agencies to avoid the provision of many of the entitlements of staff on government contracts? How many have agency contracts that offer less holidays than government staff? How many are on insecure temp contracts? How many do not have the same level of pension and insurance coverage?

It feels very disingenuous that the government is making a big deal about the new ‘rights’ it is proposing when it continues to work through agencies to avoid giving equality to its own staff who are not considered to be government ‘employees’ but doing the same roles?

It would be more progressive for the government to address its own internal issues prior to imposing its nice ideas on private sector employers. Instead, the government can hide behind agency recruiters when a ‘request’ for flexible working hours is submitted – the agency can simply say the govt department has requested this role thus it cannot make any adjustments; and the government can avoid looking the ‘employee’ in the eye, outsourcing its rejection to a faceless agency.

In January 2020, the Irish Times reported that ‘the State has spent more than €1.5 billion in recent years on temporary agency staff, including chefs, architects, cleaners, staff in diplomatic missions, and nurses”.

Going into more detail, the Health Service Executive spent more than €1.4 billion in the five-year period to 2018. Reported in the Irish Times, in a letter from the HSE to Social Democrats Catherine Murphy:

“Approximately 94 per cent of our pay-related spend each year is for directly employed staff and in certain cases, other than utilisation of agency, there are limited choices in terms of maintenance of essential services.”

The HSE said the flexibility offered by agency staffing makes it an “appropriate choice”.

“The HSE is committed to minimizing the use of agency staff but recruitment and retention of clinical, nursing and other key staff is a constant challenge and impacts adversely on our ability to maintain safe and effective services”.

 

According to citizensinformation.ie  

“Agency workers must have equal treatment with regular workers from their first day at work. As an agency worker, you have the same basic employment conditions as if you had been directly recruited by the hirer.

This includes the duration of working time, rest periods, breaks, night work, annual leave and public holidays. This is defined as basic pay, shift premium, piece work, overtime, unsocial hours worked, and Sunday work.

The legislation does not include occupational pension schemes, sick pay, bonuses, maternity pay or benefit in kind.”

 

Under the law, some employees are more equal than others and it will be interesting to see whether the new laws will be applicable to agency staff as well as regular employees and how these will be put into practice. Already there exists asymmetries in treatment in relation sick pay, bonuses, pension and maternity pay – treating one group as second-class citizens.

In practice, there are also questions to be asked about whether agency workers receive the same basic employment conditions as regular workers – in particular in relation to annual leave entitlements. It is time for more questions to be asked as the Government peacocks on behalf of workers while throwing dirt at some of its own.

 


David Reynolds

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