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UK — Government launches consultation paper on delayed AWD

16 October 2009

Even though the labour government has deferred the implementation of the European Union Agency Workers Directive (AWD) until 2011, a consultation paper has been launched which details the legislation they would like to see enacted.

The legislation will be on the basis of the May 2008 agreement between the employer organisation (CBI) and the Trades Union Congress (TUC), providing agency workers with the right to equal treatment after 12 weeks in a given job. Overall, the details of the proposed legislation are not as bad as many in the staffing industry had feared although a further round of consultation, which closes on 11 December, may still result in amendments to the draft regulations.

The regulations will come into force on 1 October 2011 and will apply to people finding temporary work through a temporary staffing agency. It will exclude workers who are self-employed, working through their own limited company or those employed on managed service contracts. The legislation will also include agency workers contracted to an 'umbrella company' or who operate a 'personal service company' but are not generally self-employed as well as 'chain arrangements' such as workers supplied via 'intermediaries' like master/neutral vendors.
Other important issues within the draft include:-

• The definition of “pay� as basic pay plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment. This excludes bonus payments based wholly or partly on organisational performance or other aspects of remuneration provided in recognition of a long-term employment relationship such as share ownership schemes.

• The definition of the 12 week qualifying period as 12 calendar weeks regardless of working pattern (eg part-time as opposed to full time) with a minimum 6 week break between assignments before the 12 week clock starts again.
• Equal treatment defined as those conditions that “generally apply� in the workforce including collective agreements, pay scales and employment contracts. In practice equal treatment will often entail a “flesh and blood� comparator. While comparison should be made with permanent employees doing the same or broadly similar work, regard can be made for the temporary worker’s qualifications, skills, experience and expertise.
• Liability for breaches will be the responsibility of the staffing agency, however they will have a reliable defence if they have taken “reasonable steps� to ensure equal treatment and employers can also be party to a claim for infringement.

• Right of the temporary worker to ask their agency for a written statement relating to their equal treatment rights at the end of their 12 week assignment.

• A new “reasonableness test� relating to temp to perm fees which, the government claim, “should not, as a result, be any need for responsible agencies to make any significant change to their business practices�.

The government also proposes that a Working Group be established in early 2010 to closely examine the practical implications of the proposed regulations especially for small and medium businesses.

Paul Kenny, General Secretary of the GNB union told the Birmingham Post, "the government has made a very serious electoral mistake by delaying the introduction of new rights for agency workers. The decision will go down very badly with workers and will undermine support for Labour at the next General Election [in 2010]."

Business Minister Pat McFadden said, "the law will come into force in the UK in October 2011, giving recruiters and their clients time to prepare and plan. We are mindful of the need to avoid changing requirements on business until the economic recovery is more firmly established."

Mr. Kenny added, "agency and temporary workers have been abused and exploited for too long. The only people cheering this decision are from the bodies representing those who have been doing the exploitation."

To read the full consultation paper please click here


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