The Gazette 1987

GAZETTE

JULY/AUGUST 1987

only once per week and she would either suggest a topic for an article or be asked to contribute an article. She was not considered an em- ployee as she was under no obli- gation to contribute on a regular basis. It might be noted that technical- ly, the Tribunal's Determination on minimum notice in the Irish Press case still stands unless appealed and overruled by the High Court i.e. for the purpose of that Act, 13 he is still an employee. Such an appeal may be made on a point of law on- ly to the High Court. However, for precedent purposes, the Circuit Court judgment has higher authori- ty than that of the Tribunal. Agency Workers These are workers who register with employment agencies, whose business it is to enter into contracts with such workers and then make them available to a third party (the hirer), who requires the services of a temporary worker. The legal status of such workers is both complicated and unfortunate. In Construction Industry Training Board -v- Labour Force Limited,™ it was stated 'where A contracts with B to render services ex- clusively to C, the contract is not a contract for services (or of service), but a contract sui generis, a different type of contract from either of the familiar two '. Accord- ingly, such worker is not an employee of the agency or the hiring employer. This issue was recently con- sidered by the High Court in Minister for Labour and PMPA Insurance Company Limited (under administration j. 15 The case reached the High Court by way of case stated from the District Court — on the question as to whether the ' agency t emp' was an employee or not. The Minister had prosecuted the PMPA under the Holidays (Employees) Act, 1973 contending such person had an entitlement under that Act by virtue of being an employee. One must be an employee to fall within the scope of that Act. Barron, J. relied on the Construction Industry Training Board case in considering that there was neither an express nor an implied contract between the PMPA and the 'temp'. Ac- cordingly, the person was not an employee and thus did not have an

entitlement under the Holidays Act. This view was previously upheld by the Tribunal in O'Dowd and Kinse/la -v- PMPA Insurance Com- pany Limited and Alfred Marks Bureau . 16 The claimants had signed up with the Bureau to perform temporary work as and when it became available. The Bureau supplied temporary staff to, among others the PMPA when re- quested. Miss Kinsella claiming redundancy and minimum notice, was sent to the PMPA by the Bureau as a temporary worker in July 1981 and remained there until the end of March, 1984, when the employment of such temporary workers by the PMPA was phased out. Miss Kinsella was offered a temporary post elsewhere by the Bureau but declined due to changed domestic circumstances. (Miss 0 ' Dowd did not attend the hearing before the Tribunal.) Both the Bureau and the PMPA denied the claimants were employees. The Bureau merely acted as a referral agency and did not employ them; the PMPA did not treat them as employees and did not have control over which temporary workers were sent. Mis Kinsella accepted she was employed on a temporary basis subject to one hour's notice of termination. However, she con- sidered that she should be entitled to notice and redundancy in accor- dance with the Acts due to her long service with the same company. The Tribunal considered that the claimants were not employees of either the Bureau or the PMPA, and their claims failed. Howeve r, in Treanor -v- McCalT 7 the Tribunal was satisfied that the claimant, supplied by the agency, was an employee of the hirer. The agency was paid a regular fee to perform accounting functions and the hirer could decide on whom he would employ and the rate of pay. (It would appear that such arrangements did not fall within the normal arrange- ments for such agency workers.) Protective Legisletion In order to fall within the scope of protective legislation (the Unfair Dismissals Act, 1977; the Reun- ancy Payents Acts, 1967 to 1984; the Minimum Notice and Terms of Employment Ac t s, 1973 and

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1984; and the Maternity Protection of Employees Ac t, 1981) a temporary worker must be an employee working under a contract of service. Aspects of such legislation which affects temporary employees will now be considered. Hours In order to fall within the scope of such legislation an employee must normally be expected to work 18 hours per week. Frequently this matter is difficult to determine. The law does not specifically provide for averaging the hours over a period of time. 18 The only practical way of determining the hours is to look at hours actually worked and the custom and practice associated w i t h the duties, e.g. regular rostered over- time. In Mulvaney -v- Professional Contract Cleaners Limited 19 the Tribunal considered t hat the claimant worked less than 21 hours per week (the previous hourly ceiling which has been amended by the Protection of Employees (Employers' Insolvency) Act, 1984 to 18 hours). This was

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