implementing the agency workers directive (awr). outline of the agency workers regulations come into...

Implementing the Agency Workers Directive (AWR)

OUTLINE OF THE AGENCY

WORKERS REGULATIONS

• COME INTO FORCE ON 1ST OCTOBER 2011

• THE PURPOSE IS TO PROVIDE AGENCYWORKERS WITH– EQUAL WORKING AND EMPLOYMENT CONDITIONS– EQUAL ACCESS TO FACILITIES– PERMANENT EMPLOYMENT OPPORTUNITIES– PARITY IN PAY

AS A DIRECTLY EMPLOYED MEMBER OF STAFF

• AND TO ENFORCE PENALTIES FOR NON-COMPLIANCE BY AGENCIES AND THEIR CLIENTS

• DAY 1 RIGHTS– ACCESS TO COLLECTIVE FACILITIES – ACCESS TO INFORMATION ABOUT PERMANENT EMPLOYMENT

OPPORTUNITIES

• RIGHTS AFTER 12 WEEKS– EQUAL PAY RATES, WORKING TIME DURATION, NIGHT WORK, REST

PERIODS, REST BREAKS AND ANNUAL LEAVE– ENTITLEMENT TO BONUSES DIRECTLY ATTRIBUTABLE TO THE AMOUNT

OR QUALITY OF WORK DONE BY THE AGENCY WORKER– BENEFITS WHICH HAVE A CASH VALUE (E.G. LUNCHEON VOUCHERS)– PAID TIME OFF TO ATTEND ANTE-NATAL MEDICAL APPOINTMENTS

FAITH COPYRIGHT 2011 ©


WORKERS REGULATIONS

• HOW AGENCY WORKERS QUALIFY FOR RIGHTS AFTER 12 WEEKS:

• IF THERE IS A COMPARABLE EMPLOYEE WHO IS DIRECTLY EMPLOYED BY THE HIRING CLIENT AND IS UNDERTAKING BROADLY THE SAME OR SIMILAR WORK FOR THE HIRER. THEY MUST BE EMPLOYED BY THE CLIENT AT THE TIME BUT THEY COULD HOWEVER BE WORKING AT A DIFFERENT SITE.

• ONCE THEY HAVE WORKED FOR THE CLIENT HIRER FOR A 12 WEEK QUALIFYING PERIOD:

– A QUALIFYING WEEK STARTS ON THE FIRST DAY THAT THE AGENCY WORKER BEGINS AN ASSIGNMENT WITH THE CLIENT (EVEN IF IT IS JUST FOR ONE HOUR)

– THE QUALIFYING PERIOD STOPS TICKING IF THE AGENCY WORKER HAS A 6 WEEK GAP BETWEEN ASSIGNMENTS OR IF THE AGENCY WORKER MOVES OFF TO ANOTHER ASSIGNMENT WITH A DIFFERENT HIRING CLIENT.

– THE QUALIFYING PERIOD CONTINUES TO ACCRUE IF THE AGENCY WORKER IS ABSENT DUE TO ANNUAL LEAVE, SICKNESS, PREGNANCY, JURY DUTY OR SOME OTHER STATUTORY RIGHT TO TIME OFF OR DURING ANY PLANNED SHUTDOWNS.

– IT ALSO CONTINUES TO ACCRUE IF AN AGENCY WORKER SWITCHES AGENCY BUT REMAINS AT THE SAME SITE IN THE SAME ROLE



WORKERS REGULATIONS

• AGENCY WORKERS REGULATIONS INCLUDE ANTI-AVOIDANCE PROVISION PREVENTING ASSIGNMENTS FROM BEING MANAGED IN SUCH A WAY TO AVOID AGENCY WORKERS QUALIFYING. IN THE EVENT OF NON-COMPLIANCE, THE MAXIMUM COMPENSATORY AWARD IS £5,000 PER AGENCY WORKER. THIS IS IN ADDITION TO THE BASIC AWARD WHICH WILL BE SET TO COMPENSATE AGENCY WORKERS FOR ANY PAY DISCREPANCY

• THE AGENCY WILL BE LIABLE PRIMARILY FOR ENSURING COMPLIANCE. HOWEVER THE HIRING CLIENT CAN BE HELD LIABLE IF IT IS SHOWN THAT THEY DID NOT PROVIDE THE AGENCY WITH NECESSARY DATA ON DIRECT EMPLOYEE TERMS

• THE HIRING CLIENT IS LIABLE SOLELY IN RESPECT OF ACCESS TO COLLECTIVE AMENTITIES/FACILITIES

• THE AGENCY IS LIABLE SOLELY FOR PREGNANT EMPLOYEE REGULATIONS

• ENFORCEMENT OF THESE REGULATIONS WILL BE MADE THROUGH– EMPLOYMENT TRIBUNAL CLAIMS– GANGMASTERS LICENSING STANDARDS (WHERE RELEVANT)


CONSEQUENCES OF THE REGULATIONS

• A POSSIBLE INCREASE IN AGENCY’S CHARGE RATES TO CLIENTS IN ORDER TO TAKE ACCOUNT OF HIGHER RATES OF PAY, HOLIDAY ENTITLEMENT OR OTHER ELIGIBLE PAYMENTS

• INCREASED BURDEN ON AGENCIES/HIRING CLIENTS TO ESTABLISH SYSTEMS FOR MONITORING QUALIFYING PERIODS AND ENSURING COMPLIANCE

• REQUIREMENTS ON HIRERS TO ENSURE THE SUPPLYING AGENCY IS PROVIDED WITH INFORMATION ON RELEVANT EMPLOYEES IN ORDER TO ESTABLISH AND MONITOR EQUAL TREATMENT FOR THE AGENCY WORKER.


SUGGESTED SOLUTIONSThere is no ‘one size fits all’ answer

OPTION 1 – COMPLYTHE HIRING CLIENT AND THE SUPPLYING AGENCY AGREE A PARITY IN PAY RATE DUE TO THE AGENCY WORKER AFTER 12 WEEKS ON AN ASSIGNMENT.

THE HIRING CLIENT UPLIFTS THE RATE PAID TO THE AGENCY TO ENABLE THE WORKER TO BE PAID AT THE SAME RATE AS A COMPARABLE, PERMANENT EMPLOYEE

WHERE THE COMPARABLE EMPLOYEE RECEIVES MORE THAN 4 WEEKS HOLIDAY PLUS BANK HOLIDAYS, THE PAY RATE (AND CHARGE RATE) CAN BE INCREASED TO COMPENSATE, RATHER THAN GIVE THE AGENCY WORKER EXTRA PAID HOLIDAYS. THIS IS AN ALTERNATIVE TO AVOID THE AGENCY HAVING TO KEEP ACCOUNTING RECORDS OF EACH HIRING CLIENT’S HOLIDAYS.



OPTION 2THE COMPARATOR OPTION

THE HIRING CLIENT CREATES A COMPARATOR BY DIRECTLY ENGAGING ONE OR MORE WORKERS ON A CASUAL OR TEMPORARY BASIS (WITH THE SAME PAY RATE AND CONDITIONS AS THE WORKERS SUPPLIED BY AN AGENCY) TO DO THE SAME WORK AS THE AGENCY WORKERS.

BECAUSE THE DIRECTLY ENGAGED CASUAL OR TEMPORARY WORKER HAS THE SAME CONDITIONS AND PAY RATE AS THE AGENCY WORKERS AND THEY ARE A COMPARABLE WORKER, THERE IS NO NEED FOR THE AGENCY WORKERS TO HAVE AN INCREASE IN PAY AFTER 12 WEEKS REGARDLESS OF THE TERMS OF OTHER NON-COMPARABLE EMPLOYEES.



OPTION 3THE MANAGED SERVICE

OPTION

THE HIRING CLIENT OUTSOURCES CERTAIN OPERATIONS TO THE SUPPLYING AGENCY, WHO TAKES RESPONSIBILITY FOR THAT PART OF THE HIRING CLIENT’S SERVICE. THIS WOULD NEED TO BE UNDER A SPECIFIC CONTRACT WITH SERVICE STANDARDS, KPIs, DELIVERABLES, ETC. AND UNDER THE SUPERVISION AND CONTROL OF THE AGENCY, NOT THE HIRING CLIENT.



OPTION 4‘SWEDISH DEROGATION’

REGULATION 10 OF THE AGENCY WORKERS DIRECTIVE

THE AGENCY TRANSFERS ITS AGENCY WORKERS TO A PERMANENT CONTRACT OF EMPLOYMENT WHICH THEN REMOVES THE RIGHT OF AGENCY WORKERS TO BE GIVEN EQUAL PAY AFTER 12 WEEKS IN AN ASSIGNMENT IN RETURN FOR CONTINUITY OF EMPLOYMENT. EXEMPTION APPLIES ONLY TO PAY, SO AGENCY WORKERS WILL STILL QUALIFY FOR SAME HOLIDAY ENTITLEMENTS AND OTHER DAY 1 RIGHTS AS DIRECT EMPLOYEES.

THERE ARE COST IMPLICATIONS TO THE AGENCY AS THE WORKERS MUST BE PAID FOR UP TO 4WEEKS WHERE NO WORK IS AVAILABLE AND A SUITABLE ALTERNATIVE ASSIGNMENT CANNOT BE FOUND. THE AGENCY WORKERS ALSO HAVE AN ENTITLEMENT TO RECEIVE ANY UNPAID “OFF ASSIGNMENT” PAY IF THE AGENCY TERMINATES THEIR CONTRACT.

HOWEVER, IF THIS SYSTEM IS CAREFULLY MANAGED, THE AGENCY COULD KEEP THE ADDITIONAL COSTS INCURRED TO A MINIMUM.



OPTION 5

‘FRENCH EXTENSION’

THIS IS ANOTHER WAY TO CREATE A ‘STARTER’ OR ‘TRAINING’ GRADE OF EMPLOYEE (AND ACTUALLY HIRE SOMEONE AT THIS GRADE AS A PERMANENT MEMBER OF STAFF) WHICH HAS A PAY RATE AT THE SAME LEVEL AS RECEIVED BY AGENCY WORKERS UNDERTAKING THE SAME WORK. THIS ‘STARTER’ GRADE WOULD NEED TO LAST ABOUT 6 TO 12 MONTHS FOR EACH NEW PERMANENT EMPLOYEE.



OPTION 6

‘HARMONISATION’

THE HIRING CLIENT BRINGS THE BASIC PAY AND CONDITIONS OF THEIR PERMANENT EMPLOYEES DOWN TO THE SAME LEVEL AS THE PAY RECEIVED BY AGENCY WORKERS DOING THE SAME JOB. (E.G. IF PERMANENT STAFF ARE PAID AT £7.50 AND AGENCY WORKERS UNDERTAKING THE SAME WORK ARE PAID £6.50, THE CLIENT CAN RENEGOTIATE THE PAY LEVEL OF THEIR PERMANENT STAFF DOWN TO £6.50 AND ‘TOP UP’ THEIR PAY WITH A ‘LOYALTY’, ‘LONG TERM ATTENDANCE’ OR OTHER BONUS EQUIVALENT TO THE £1.00 PER HOUR DEDUCTION). THESE TYPES OF BONUSES ARE NOT COUNTED TOWARDS ‘PAY’ FOR THE PURPOSES OF COMPARISON AND THERE IS NO REQUIREMENT TO INCREASE THE AGENCY WORKERS PAY RATE AFTER 12 WEEKS AS THEY EARN THE SAME AS THE PERMANENT STAFF.



OPTION 7

‘NO COMPARATOR EXISTS(*)’IF THERE IS GENUINELY NO EMPLOYEE COMPARATOR AT THE HIRING CLIENT, THEN THERE IS NO REQUIREMENT TO ALTER THE PAY RATE FOR THE TEMPORARY WORKER. HOWEVER IT MUST BE A GENUINE SITUATION WHERE NO COMPARATOR EXISTS. A TEMPORARY WORKER MAY ATTEMPT TO CLAIM THAT A COMPARATOR EXISTS AT ANOTHER OF THE HIRING CLIENT’S SITES OR AN ADJOINING EMPLOYER SITUATED IN THE SAME ROAD OR INDUSTRIAL ESTATE. PLEASE NOTE THAT IN THIS INSTANCE THE ONUS IS ON THE TEMPORARY WORKER TO PROVE THEIR CLAIM.

(*) If there is no comparator employed by the hirer but their is a pay scale for that role, I.e. the position is currently vacant, then the agency worker would be entitled to that pay rate after 12 weeks.


PRACTICAL TIPS FOR HIRERS

BETWEEN NOW AND OCTOBER 2011 HIRERS WHO USE AGENCY WORKERS FOR PERIODS IN EXCESS OF 12 WEEKS NEED TO CARRY OUT A SYSTEMATIC REVIEW OF THE TERMS AND CONDITIONS THEY OFFER THEIR OWN EMPLOYEES AND IDENTIFY WHICH OF THOSE TERMS MAY NEED TO BE CONSIDERED WHEN GRANTING ‘EQUAL TREATMENT' TO A QUALIFYING AGENCY WORKER.

• HAVING IDENTIFIED ANY HIGH RISK TERMS AND CONDITIONS HIRERS MAY WISH TO CONSIDER THE FOLLOWING:

– INTRODUCING TRANSPARENT PAY SCALES– REVIEWING WHETHER ANY TERMS AND CONDITIONS

(ESPECIALLY CONTRACTUAL OR POLICY WORDING) NEEDS REWORKING IN ADVANCE OF THE REGULATIONS COMING INTO FORCE, PARTICULARLY IN RELATION TO BONUS AND INCENTIVE ARRANGEMENTS

– REPLACING TERMS AND CONDITIONS IDENTIFIED AS HIGH RISK WITH OTHERS

– INTRODUCING BESPOKE QUALIFYING PERIODS FOR CERTAIN TERMS AND CONDITIONS, E.G. LOYALTY-BASED HOLIDAY ENTITLEMENT. AGENCY WORKERS WOULD STILL BE ENTITLED TO THE INCREASE IF THEY WORKED FOR THE LENGTH OF TIME REQUIRED, BUT NOT OTHERWISE


RECOMMENDED STEPS FOR HIRERS

• IN ORDER TO DETERMINE THE IMPACT THE REGULATIONS WILL HAVE, HIRERS (WITH THE ASSISTANCE OF AGENCIES WHERE APPROPRIATE) WILL NEED TO TAKE THE FOLLOWING STEPS:

– REVIEW THEIR CURRENT SYSTEMS FOR ADVERTISING INTERNAL PERMANENT VACANCIES TO ENSURE THEY CAN BE MADE AVAILABLE TO ANY TEMPORARY WORKERS BEING SUPPLIED AFTER 1 OCTOBER 2011;

– REVIEW ANY ON-SITE FACILITIES THAT TEMPORARY WORKERS WILL HAVE ACCESS TO FROM 1 OCTOBER 2011 (IF REFUSAL TO SUCH ACCESS CAN BE JUSTIFIED, SUCH JUSTIFICATION WILL NEED TO BE COMMUNICATED CLEARLY TO ALL TEMPORARY WORKERS AND EMPLOYEES);

– CONSIDER THE AVERAGE LENGTH OF THEIR TEMPORARY ASSIGNMENTS CURRENTLY SO AS TO ENSURE AWARENESS OF THE PROPORTION OF TEMPORARY WORKFORCE THAT IS LIKELY TO ACQUIRE 12 WEEK RIGHTS;

– AUDIT THE TERMS AND CONDITIONS OFFERED TO PERMANENT EMPLOYEES WHO ARE CARRYING OUT WORK WHICH MIGHT ALSO BE UNDERTAKEN BY TEMPORARY WORKERS TO ENSURE AWARENESS OF THE ENTITLEMENTS WHICH TEMPORARY WORKERS SUPPLIED FROM 1 OCTOBER 2011 COULD CLAIM OVER AND ABOVE THOSE THEY CURRENTLY ENJOY FOR EXAMPLE:

• THE EXTENT TO WHICH THE HIRER'S CONTRACTUAL PAID HOLIDAY ENTITLEMENT EXCEEDS THE STATUTORY MINIMUM ; AND/OR

• THE AMOUNT OF OVERTIME PAY HIRERS ROUTINELY PAY THEIR DIRECT EMPLOYEES .


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