Download AWR 2011 - The HR Exchange

Agency Worker Regulations 2011
Laura Hartley
Director
Laura Hartley Recruitment Ltd
Recruitment Choices
1. The Managed Service Option
2. The “Recruitment Service” Option
3. The “Swedish Derogation” Option
The Managed Services
-Taking labour provider out of the definition of a
“temporary work agency” by providing the
whole service
-Making changes so that the workers no longer
work “temporarily for and under the
supervision and direction of hirers”
-It must be more than just a dressing up of the
service provided
Managed Service Option Cont.
The agency should, for example:
-Fully train and supervise the workers
-Subject the workers to their own disciplinary
policy
-Organise rotas, shift patterns, cover, attendance
recording
-Manage pay, bonuses, holidays and other
benefits
Managed Service Option Cont.
Common managed services solutions include:
-Catering
-Security
-Cleaning
For example, BCS Foods Ltd could pay an
“agency” a fixed fee to provide the service of a
whole production line
See BIS Guidance
The “Recruitment Service” Option
The definition of “agency worker” under Reg 3
includes a requirement that the individual has
either a “contract of employment with the
agency” or “any other contract with the
agency to perform work or services
personally”
The “Recruitment Service” Option cont.
-The regulations will be arguably be circumvented
where there is no contractual relationship
between the agency and the worker.
-The labour user can engage the workers itself
either under a flexible contract of employment or
a contract for services
-The agency will carry out more the role of an
employment agency, getting paid for the
introduction of candidates who are then
employed by the labour user and/ or managing
the relationship and its day to day fulfilment.
The “Swedish Derogation” Option
Exemption to Principle of Equal Treatment
-The Directive provides an exemption:
“Where temporary agency workers who have a
permanent contract of employment with a
temporary work agency continue to be paid in
the time between assignments”
“Minimum Amount”
-Reg 10 will introduce the exemption into UK law.
-It states that a “minimum amount” must be paid to the
agency worker during the period in which they are not
working for the exemption to apply.
-The “minimum amount” must be at least 50% of the
worker’s basic pay while on assignment and must not
be less than minimum wage (Reg 11).
-Reg 10 also states that, during the periods between
assignments, the agency must also take reasonable
steps to seek a suitable new assignment for the worker
and to allow the worker to be put forward for any such
suitable alternative assignment.
“Starter Grades”
-In France, it is common for there to be an extra
“training” grade for new starters- lower pay and
benefits whilst training.
-Implemented in the UK by end users, meaning that
new agency workers would only be entitled to
the rights of permanent staff on the training
grade (likely comparators).
-The introduction of such a training grade would
affect permanent staff during the training period
as well as agency staff after their 12 week
qualifying period.
Harmonisation Option
-Harmonise the rights of its temporary workers
with its permanent staff in advance of
Regulations coming into force.
-More expensive from wages perspective
-Could save on admin costs of implementation.
The burden of having different rights for
agency staff with and without 12 weeks
service.
Anti avoidance and liability
Only relates to the 12 week period.
• Reg 9 gives a worker the right to be treated as
if they were entitled to equal treatment if a
structure of assignments develops, the most
likely explanation for which is the prevention
of the worker being entitled to the rights
conferred by the Regualtions.
• Tribunal can make an additional award of up
to £5000 for a breach of this provision
Timetabling and implementing the
plan
-Regulations to come into force 1st October 2011
-Seek advice
-Agencies need to work closely with hirers to
plan and ensure compliance with the
regulation
-Avoid Anti avoidance
-Final BIS Guidance now available
Information required
• Is there a comparable employee in the business?
• Pay rates incl overtime and unsociable hours
• Commission/ bonuses- what bases and when
• Anticipated hours of work
• Rest breaks
• Annual leave
* Has the worker worked previously for the client!
LH Recruitment
-Analysed our clients temp usage over 2 year
period
-Visited all temporary clients to discuss the
implications of the AWR
-Discussed the right option for the clients
-Explained the process we will go through to
keep both the client and ourselves compliant.
LH Recruitment cont
Minimum quarterly service visits
Each assignment confirm to candidate and client
• never worked there in the last 12 weeks
• Pay rate and holidays
• Reminder to client “day one rights”
Week 10 flag
New assignment details for week 13 confirming pay
and holidays
Fact sheet for each client given to candidate with
assignment details