The Employment Permits section has recently received a number of queries regarding the provision of employment permits for prospective staff of companies operating as employment agencies. These queries have sought clarification on the issue of whether there is a difference between agency staff and direct employees of the company. In order to clarify this issue, the following advice may be useful when applying for employment permits for companies that are considered to fall within the definition of employment agency.
The Workplace Relations Commission (WRC) defines an agency worker as 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. In such cases under subsections (2) & (3) of section 1 of the Employment Permits Act 2006 as amended, the employment agency is not considered to be the employer of the proposed employee. Therefore, an employment agency is precluded from applying for an employment permit for this category of employee.
The key question here turns on whether there is a contract in place which provides that the foreign national is to do work or perform a service for another person. If there is such a contract, and the application is from an employment agency within the meaning of the Employment Agency Act 1971, then the agency is not considered to be the employer. Such applications will be refused under the provisions of the Employment Permits Acts, as amended.
However, the Employment Permits Acts, as amended do not stipulate that employment agencies per se can never be an employer for the purposes of the Acts. They can still be considered an employer for the purposes of the Acts, provided that no such contract exists. In other words, it must be clear that the foreign national in question is to work directly for the employment agency and not some other third entity. If the foreign national is to be employed directly by the employment agency, then in principle, no issue would seem to arise under the 2006 Act. The foreign national can, although directly employed by the employment agency (i.e. the foreign national is paid by it and remains under its direction and supervision), be located for the purposes of their employment in a third party site.
From a practical perspective, where an employment permit is being sought and the prospective employer falls within the definition of an employment agency, it would be beneficial to include a copy of the employment contract with the Employment Permit application. This will enable the section to process the application within our target processing times without undue delay.
Where such an employment contract is not clear, the section may request additional information from the parties to establish the prospective employee/employer relationship.
Employment Permits Section
17 May 2017