Speculation on how European proposals on agency workers will apply in the UK finally ended recently with the publication of the Agency Workers Regulations 2010.
It may feel like the pressure is off because implementation of the regulations has been delayed until 1 October 2011. But this is a time for reflection and planning, not inertia. Since the regulations are estimated to cost 0.3 per cent of the UK pay bill, hirers should identify now what new working practices will be required to accommodate them.
There are few major policy changes in the final regulations, but there are some differences in detail from previous drafts - for example, the comparator and pay definitions, and in the anti-avoidance provisions.
Defining “temps”
Workers supplied by a temporary agency to work “temporarily for and under the supervision and direction of a hirer” – commonly referred to as "temps" – will be covered by the regulations. The definitions adopted are complex but are intended to exclude:
• the genuinely self-employed;
• those working through their own limited liability companies (provided they are genuinely self employed); and
• those working on “managed service contracts”.
Qualifying period
After completing 12 weeks in an assignment, agency workers will be entitled to the same basic working and employment conditions as if they had been recruited directly by the hirer on day one of the assignment, whether as an employee or a worker. Agency workers may compare their terms with the hirer’s direct recruits working in the “same or broadly similar” role – the comparators don’t have to be in the same office or establishment.
In some respects “basic working and employment conditions” is a simple concept. It will, for example, include:
• comparable salary, overtime or commission payments; and
• rest breaks and holidays entitlement.
In practice, calculating increased holiday entitlement or identifying commission owed to agency workers is likely to prove less straightforward.
Eligibility
The issue becomes more complicated in relation to the list of payments for which agency workers are not eligible. They will not get:
• company sick pay, redundancy pay and pension;
• bonuses, incentive payments or rewards “not directly attributable to the amount or quality of the work done”; and
• benefits in kind.
Drawing the line
A new provision in the regulations allows workers to receive vouchers or stamps of a fixed monetary value, such as luncheon vouchers. Will hirers know which employee payments or benefits apply? For example, will staff discounts be included or excluded? Although discounts are not intended to be caught, according to documents accompanying the regulations, the issue is not clear cut. Could discounts constitute payments or could they be issued as vouchers, to which agency workers are entitled? Or, where they are provided via an onsite shop, are they a collective facility to which agency workers should have equal access? Agency workers will have the right to access collective facilities (eg, staff canteen, creche, transport) from their first day on the same basis as employees and other workers.
While some of these issues will be clarified in a future government guidance document, the safest option for hirers will be to include agency workers in the benefits, introduce service qualifications for their employees or, more drastically, remove some benefits.
Costs
Many organisations have already started to review how compliance with the regulations will affect their costs and practices, and to consider whether there are more effective ways of meeting their flexible labour needs. These might include:
• moving to direct recruitment;
• engaging casuals through an “in house” bank of workers;
• using a third party (possibly an agency) to employ workers directly; or
• increasing the use of self-employed workers and managed service contracts.
Organisations with short-term staffing gaps will need to find ways of absorbing the increased costs. Negotiating exclusivity with fewer agency suppliers, while also renegotiating terms to reduce risks and costs, may help those hirers with sufficient purchasing power.
Avoidance
Some hirers may decide only to use agency workers for fewer than 12 weeks where feasible. However, repeating such practices, or moving workers between different jobs, will not be a viable means of avoiding the regulations. Any “structure of assignments”, such as placing agency workers on a series of 11-week contracts or varying their roles every few weeks, is prohibited and may attract a fine of up to £5,000.
Another alternative is for hirers to scrutinise the way in which their employee pay and benefits are packaged and decide whether they fall within the regulations’ equal treatment requirements or, with adjustment, can be excluded.
Suddenly, October 2011 does not seem so far away.
To look at others and see how much Taiwanese Labour department need to improve still.
回覆刪除To be honest, the new employment law of Taiwan is not going to protect labours but ribbing them off even longer and push the benefits to the agency companies around Taiwan.
It is really worthwhile to read and re-think about Taiwan's employment envirnment.