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,

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

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

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,

Treanor

-v-

McCalT

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

C O M P A N Y

S E C R E T A R I AL

C O N S U L T A NT

PETER H. QUINLAN

MBA, AITA

OFFERS

COMP L E TE

C OM P A NY SERV I CE

Advice on Corporate Procedures

Drafting of Resolutions and Minutes

Arrangement of Company Meetings

Searches and Updates of

Company Records

Filing Returns and Other Compliance

67 LANSDOWNE ROAD

DUBL IN 4

Tel.: (01) 6 8 4 2 4 5

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.

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

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

193