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9/9/2009 2:11:10 PM
The Agency Workers Directive - time to panic?
The Agency Workers Directive, or AWD for short, is a
European Directive which is inspired by a desire to offer more
extensive protection to agency workers whom it considers to be
vulnerable. It aims to do this by establishing a right of equal
treatment for agency workers compared to their permanently employed
peers.
Are agency workers “vulnerable”?
Not necessarily, and that is why the implementation of the
Directive will not be as straightforward as the Department of
Business, Innovation and Skills (“BIS”) has suggested in its recent
consultation paper.
The Directive appears to be aimed at vulnerable workers rather
than professional contractors, and it is this argument that we have
focussed on in our response to the recent consultation.
Tell me about this consultation.
BIS issued a public consultation which is now closed (closing
date 31 July 2009). Throughout the consultation period, we
consulted with the Association of Professional Staffing Companies
(“APSCo”) and the Recruitment & Employment Confederation
(“REC”). APSCo, REC and ARM have each submitted their own
responses. They were broadly similar on the core points, although
of course as a recruitment consultancy ours was more specific to
the particular (niche) areas in which we operate.
What will the AWD mean to me?
It is too early to make any firm comments about this. Once we
have seen the draft legislation – expected around October this year
– we will have a clearer view on how the Government intends to
implement the Directive, and will update you accordingly.
I have heard that I will have to treat your agency workers in
the same way as I treat my own employees. Is this true?
That is one of the issues yet to be clarified. The Directive
does require agency workers to be given the same “…basic
working and employment conditions […] that would apply if they had
been recruited directly by that undertaking to occupy the same
job.” (Art. 5.1 Dir. 2008/104/EC). However, it also permits
Member States a certain amount of freedom as to what this covers
and to whom the Directive should apply. This is one of the key
areas that is undecided. The consultation paper makes provision for
the exclusion of certain categories of workers however this is
arguably the area of least clarity at the current time. As it
stands, however, further clarification is needed before sensible
comment can be made in this respect.
When will the Directive be implemented into national
legislation?
That is also not yet clear. The European Parliament and Council
of the European Union have stipulated that the Directive must be
implemented at the latest by 5th December 2011. The suggestion has
been made that the Directive should be implemented by April 2010.
The industry, by and large, is driving for a later implementation
date to take account of the current state of the economy, and to
make sure the legislation, whilst dictated by European initiatives,
is implemented with the UK economy’s best interests foremost in
mind.
What should I do?
Sit tight and wait. Some companies may try to cash in on the
knee-jerk effect seen with all impending legislation in our
industry – don’t rise to the bait. These companies don’t know any
more than you do at this stage. We will be following all
developments and will flag up any news as it develops. Meanwhile,
if you do have any queries, please feel free to contact our
in-house specialist directly by email on corab@arm.co.uk or by telephone
02392 228 228.
For more detailed information
see: http://www.berr.gov.uk/consultations/page51233.html