Protection of Employees (Temporary Agency Work) Act 2012

2.

Interpretation.

2.— (1) In this Act—

“Act of 1971” means the Employment Agency Act 1971;

“Act of 1997” means the Organisation of Working Time Act 1997;

“Act of 2000” means the National Minimum Wage Act 2000;

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

( a) pay,

( b) working time,

( c) rest periods,

( d) rest breaks during the working day,

( e) night work,

( f) overtime,

( g) annual leave, or

( h) public holidays;

“contract of employment” means—

( a) a contract of service, or

( b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“Directive” means Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, the text of which is set out in Schedule 1 ;

“employee” means a person who has entered into or works (or, where the employment has ceased, entered into or worked) under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

“Minister” means the Minister for Jobs, Enterprise and Innovation;

“overtime” means any hours worked in excess of normal working hours;

“pay” means—

( a) basic pay, and

( b) any pay in excess of basic pay in respect of—

(i) shift work,

(ii) piece work,

(iii) overtime,

(iv) unsocial hours worked, or

(v) hours worked on a Sunday,

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005;

“work” includes service, and references to the doing or carrying out of work include references to the provision or performance of a service;

“working hours” shall be construed in accordance with section 8 of the Act of 2000.

(2) A word or expression used in this Act that is also used in the Directive has, unless the contrary intention appears, the same meaning in this Act as it has in the Directive.

(3) For the purposes of this Act—

( a) a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed under a contract of employment by the State or Government, as the case may be, and

( b) an officer or servant of a local authority within the meaning of the Local Government Act 2001, a harbour authority F1 [ or the Health Service Executive or a member of staff of an education and training board ] shall be deemed to be an employee employed under a contract of employment by that local authority, the Health Service Executive, that harbour authority or F1 [ that board ], as the case may be.

(4) For the purposes of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of “contract of employment”, is liable to pay the wages of an individual in respect of work done by that individual shall be deemed to be the individual’s employer.

Annotations:

Amendments:

F1

Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72(1) and sch. 6 item 60, S.I. No. 211 of 2013.