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UK – Union takes AWD fight to Brussels

21 January 2014

The Communication Workers Union (CWU) will meet with Members of the European Parliament (MEP) this week to discuss a formal complaint submitted by the Trade Union Congress (TUC) last September. The TUC charged the UK government with failing to implement the EU Temporary Agency Workers Directive (TAWD), reports computerworlduk.com.

The CWU claims that the government’s interpretation of the directive creates a loophole that allows companies, such as BT, to employ agency workers on a lower rate than a full-time staff.

The CWU has highlighted, as an example, the work of agency workers at BT.. At the company, an agency worker paid at grade C2 earns an hourly rate of £7.50, compared with a full-time member of staff earning £16.98 per hour. Permanent employees paid at grade B1CC earn £12.53 per hour, compared with between £6.31 and £7.80 for similar level agency staff.

According to the CWU: “The UK government insisted on a derogation of the TAWD, whereby an agency worker is employed by an agency on a contract of employment and has a contract of a minimum of one hour. These contracts allow workers to be paid at least 50% of their basic pay or not less than the minimum wage between assignments where the agency cannot find them work.”

“These ‘pay between assignment’ contracts are facilitating companies; such as BT and Manpower, to employ agency workers on a much lower rate than a permanent member of staff,” the CWU added.

In essence, the so-called ‘loophole’ is a perfectly legal clause of the Agency Workers Directive (AWD) and is not a case of companies circumventing the legislation.

Known in the UK as the ‘Swedish Derogation’, the opt-out clause of the AWD has come under fire recently from opposition leader Ed Miliband, who has vowed to end the practice. Mr Miliband was heavily criticised for his comments, with staffing industry leaders quick to defend the practice of ‘pay between assignments’ contracts as essential to a flexible labour market. 

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Lewis Silkin LLP

Alison Clements 27/01/2014 5:27 am

Another thing that the unoins and Mr Miliband are totally ignoring, is the difference in rights that being an 'employee' (under the Swedish Derogation) gives to agency workers, c.f. being a 'worker' (traditional agency worker). Rights that employees have which workers don't have include:

The right to bring an unfair dismissal claim;
The right to receive an itemised payslip;
The right to statutory minimum notice;
The right to statutory redundancy pay;
The right to receive statutory sick pay;
The right to statutory maternity, paternity, adoption leave and pay;
The right to take unpaid time off to care for dependents;
The right to request flexible working;
The right to take time off for ante-natal care;
The right to take time off for trade union activities;
The right to TUPE transfer.

These are not insignificant advantages that come with the employee status, and it is disingenuous for the unions and Ed Miliband to ignore them.


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