The Recruitment and Employment Confederation (REC) issued a recent Q&A session with regard to the implementation of Agency Workers Regulations, due to come into force in October 2011. The impact of these new regs will be significant, providing temporary agency workers the same rights of basic pay and employment conditions as they would be entitled to had they been hired directly by the hirer themselves.
WHAT YOU SHOULD KNOW
The AWR applies to basic pay and employment, with pay constituting (in addition to basic pay) additional entitlements during an assignment, including:
“…basic hourly rate, overtime and shift allowances, unsocial hours premiums, payments for difficult or dangerous duties and lunch vouchers. However, the definition of pay will exclude benefits such as occupational sick pay, occupational pension schemes, occupational maternity pay and redundancy pay which are seen to be provided in recognition of the long-term relationship between an employer and a permanent employee. Profit sharing schemes will be excluded, however bonuses which are directly attributable to the quality and quantity of work done by an agency worker will be included.”
The key number in these regulations is 12 – as in the 12 calendar weeks an agency worker must be engaged in a working pattern before the worker is entitled to these equal treatment provisions. According to the REC’s March/April 2010 newsletter article, “Q&A on the Agency Workers Regulations”, the worker can take annual leave, certified sick leave or time off for public duties, but if a break of more than six weeks between assignments in the same role occurs, a new qualifying period would begin. Moreover, a new qualifying period could also begin if “a new assignment with the same hirer is substantively different”.
Because the AWR requires an agency worker to be treated as if they were directly hired by the hirer themselves, the rights of both full time and part time temporary agency workers would be protected beyond the 12 week qualifying period.
For candidates there may exist a certain fear that hirers will only take on agency workers for 11 week assignments or less, discarding the workers and taking on replacements to avoid the new regulations. The same article stressed – albeit without complete conviction that all loopholes could be addressed – that the AWR includes anti-avoidance provisions.
“(I)f either the hirer or the agency can be shown to have structured assignments with the intention of preventing an agency worker from qualifying for equal treatment or from continuing to receive equal treatment which has already been established, the agency worker will still be entitled to receive equal treatment. Where this is not provided the agency worker can issue a claim in a tribunal and will be entitled to seek additional compensation (capped at £5,000) to what could otherwise be awarded for the failure to provide equal treatment.”
Temp to perm fee fans can rejoice, too. The REC indicated that there was much debate on the AWR interfering with temp to perm fees, but the government eventually acceded and no changes would be made. It had been propsed that Conduct Regulations should be amended to leave room for a test of ‘reasonableness’ on the current fees, but the REC contended that there was “no evidence to suggest that temp to perm fees act as a barrier to hirers for taking temps on permanently”.
There is also good news for those temp workers hoping to find ways of working for their newfound employers beyond their temporary status. Measures have been implemented into the AWR that forces hirers to ensure agency workers are made aware of vacancies that arise within the organisation from day one. Access to collective facilities such as creche and childcare, canteen and provision of transport are also an entitlement for temps, though the REC does warn that access could be refused if there are “reasonable grounds” to do so.
