AGENCY WORKERS DIRECTIVE

The proposed Directive generally gives Agency Workers (AW) equal rights to permanent employees in relation to pay and conditions. It has been in the offing since 2002 and has always been opposed by the UK, on the grounds that we need the flexibility of AW and it should not apply to pay.

However, an agreement made in May 2008 between the Government, TUC and CBI changed this. The directive will now be introduced on the basis that it will apply to any AW after 12 weeks on an assignment. This was agreed by the CBI provided the UK could keep the working time directive opt out. This is now in doubt after the EU Parliament failed to agree that this exclusion for the UK should continue.

WHAT DOES THE PROPOSED DIRECTIVE MEAN FOR AGENCY WORKERS?

After 12 weeks all AW supplied by an Employment Agency will obtain:

• Equal pay with a comparable worker doing broadly similar work.
• The pay will include holiday pay, overtime, shift allowance and generally bonuses. In relation to the last, we are waiting for the Government’s decision on this, when the draft regulations are published.
• Equal conditions to permanent employees i.e. equal rest periods, holidays, breaks and working time.

WHAT ISN’T COVERED?

• Rights to flexible working.
• Redundancy.
• Reasonable notice before dismissal.
• Time off for children to look after children.

WHEN WILL IT BECOME LAW?

The Government has just finished the first consultation and is now considering the responses. Draft regulation and the Government’s views on the consultation, are expected about September /October. The directive will probably become law in about April/May 2010, subject to possible legal challenges.

WHAT ARE ARC VIEWS?

We have campaigned hard against many aspects of the directive and have been working closely with the Institute of Directors and the Federation of Small Businesses. Adrian Marlowe chair of ARC has also had extensive meetings with the Government, CBI, British Chambers of Commerce, and the Conservative and Liberal parties.

ARC is responsible for proposing two major amendments to the consultation paper. We have suggested:

• The government should implement the directive as drafted by the EU without gold plating it. The current proposal will apply to nearly all AW after 12 weeks. The actual Directive only relates to AW who are subject to “regulations, administrative provisions, collective agreements and or other binding general provisions in force in the user undertaking”(hirer). This means mainly the public sector and very large companies. If the government implement the Directive without gold plating the vast majority of AW would not be affected. This would result in an enormous saving of £1.2bn and many more agency jobs retained or created.  This is very important at a time when unemployment is a serious concern to many
• If the Government insist on gold plating the directive, there should be a two-tier system whereby AW would be subject to the directive after 12 weeks.  However, higher paid AW, earning say 1.5 % of the national minimum wage, would only be subject to the directive after a year. This would allow many AW the flexibility they enjoy at present and would avoid the problem of hirers sacking people after 11 weeks.

WHAT HAPPENS NEXT?

The Government will start a second consultation period probably in September or October and publish draft regulations at the same time. This will be the last chance to influence their decision.
The Directive is expected to become law around April or May 2010 unless successfully challenged in the courts.  Alternatively the Government could delay implementation to nearer the last date provided for by the EU, which is 5th December 2011.

WHAT YOU CAN DO

If you are an Employment Agency and agree with ARC’s proposals, why not join us?  For more information contact ARC on 01273 236236 or click on the link below.

Our detailed response to the first Consultation is available to ARC members.