Increased Protection for Agency Workers

Dear Colleague,

Increased protection for agency workers

On 22nd May 2008, the Government stated that it is to legislate to give agency workers ‘equal’ rights with directly employed labour on completion of 12 weeks employment. No date has yet been set to implement this into law and there is speculation that the Government has only conceded this in order to secure a continued opt-out at EU-level from the Working Time Directive (more information will be provided on this in a separate circular).

There is no doubt that this announcement represents progress, affecting an estimated 1.4 million workers, but there is frustration that the legal protection will not start on the first day of employment, but 12 weeks later. Neither will sick pay, maternity, paternity and pension benefits be included in the proposal, so temporary workers would continue to receive the statutory minimum in these areas.

There were a number of pressures mounting on the Government which have led to this development. Firstly, it has persistently stalled on signing the EU Directive on Agency Workers, drafted 6 years ago, which would have given temporary staff equal rights after 6 weeks (including pensions and sick pay). However, other EU States support for this position had ebbed, leaving the UK Government without a blocking minority in the EU. Domestically, Andrew Miller MP introduced his Private Member Agency Workers Bill into Parliament and the Government faced concerted union lobbying to support this. Elsewhere, the review of the Working Time Directive opt-out has been looming and The Financial Times stated that Ministers hoped the EU will see the Government’s conceding ground with a 12 week proposal, as a trade-off in return for Britain being granted a continued opt-out of the Working Time Directive.

As a way out of this situation, the Government brought the TUC and CBI together to find some compromise. It is this 12 week agreement that the Government has now endorsed and the exact wording of the deal is provided at the end of this circular.

The 12 week limit causes concern; the CBI has said that half of agency placements lasted fewer than 12 weeks and the Government proposal would obviously permit discrimination against agency workers prior to the completion of 12 weeks employment. The worst employers could utilise short-term contracts of 3 months minus 1 day, thus dismissing people on the day before they would receive enhanced employment protection.

By contrast, ‘day 1’ rights at work would guarantee important rights for everyone in the workplace, ending the exploitation of agency workers and diminishing the attraction for disreputable employers of using agency workers to undermine the wages, conditions and security of directly employed, permanent labour.

The Government will now engage with its European partners to seek agreement on the terms of the EU Agency Workers Directive that will enable this agreement to be brought into legal effect in the UK. The Government hopes that EU agreement will be obtained in time for the necessary UK implementing legislation to be introduced in the next parliamentary session.

Agency workers: Joint Declaration by Government, the CBI and the TUC

Agreement has been reached on the following points:

a) After 12 weeks in a given job there will be an entitlement to equal treatment
b) Equal treatment will be defined to mean at least the basic working and employment conditions that would apply to the workers concerned if they had been recruited directly by that undertaking to occupy the same job. It will not cover occupational social security schemes
c) The Government will consult the social partners regarding the implementation of the Directive more generally, in particular:
(i) mechanisms for resolving disputes regarding the definition of equal treatment and compliance with the new rules that avoid undue delays for workers and unnecessary administrative burdens for business;
(ii) appropriate arrangements to enable the two sides of industry and also public services to reach appropriate agreements on the treatment of agency workers, while respecting the overall protection of agency workers; and
(iii) appropriate anti-avoidance measures reflecting Art 9 (2), in particular relating to the treatment of repeat contracts for the same worker and the position of workers with permanent contracts of employment with agencies who continue to be paid between assignments; it is not intended that article 5 (2) will be used to evade the aims of the Directive.
d) The new arrangements will be reviewed at an appropriate point in the light of experience.

The RMT will continue to lobby the Government for full rights for agency workers and for ‘day 1’ rights at work. Similarly, we will carry on telling the transport companies we negotiate with that all outsourced work should be returned and for the entire workforce to be directly employed; any short-term exceptions should be agreed with RMT representatives.

Yours sincerely,

Bob Crow
General Secretary