Agency Work: Flexibility or Fairness

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Overview. Growth in a-typical working: trendsWhose flexibility?Current legal contextThe policy context: the Agency Workers Directive, employment status review and Success at Work?TUC Campaign: Flexibility AND Fairness: why not?. Agency Working in the UK. Absence of reliable dataEuro Foundat

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Agency Work: Flexibility or Fairness

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1. Agency Work: Flexibility or Fairness? Sarah Veale, Head, Equality and Employment Rights Department

2. Overview Growth in a-typical working: trends Whose flexibility? Current legal context The policy context:– the Agency Workers Directive, employment status review and Success at Work? TUC Campaign: Flexibility AND Fairness: why not?

3. Agency Working in the UK Absence of reliable data Euro Foundation: 2 estimates: DTI (2003) – 600,000 (2.6%) REC – 1,434,098 (5.1%) LFS (2004) – 264,000 – likely to significantly underestimate

4. The growth in agency work Since 1992 numbers of agency workers have increased by over 330% 2000 – 2004 (LFS) slower growth of 4% UK workforce still overwhelming permanent, but atypical working patterns have been increasing Agency working: increasing as proportion of temporary labour market

5. Where Temporary Workers Work LFS (2006) 86% service sector 43% Govt, health, education 17% distribution, hotels and catering 13% Banking, finance, insurance 9% Manufacturing

6. Whose flexibility? UK business needs agency workers and workers need temp jobs Short-term cover for sickness, holidays or parental leave Responding to peaks and troughs in demand Accessing specialist short term skills

7. Profile of Agency Workers Equal distribution of men and women Younger Workers with caring responsibilities Unemployed returners?

8. Choosing to temp? Only 31% of agency workers do not want a permanent job 45% of agency workers would prefer a permanent job, compared with only 24% of other temporary workers 55% of male agency workers want a permanent job compared with 35% of women agency workers

9. Flexibility at what price? Pay Terms and conditions Flexibility for parents: no maternity leave, parental leave, dependents’ leave? No job security - first to be made ‘redundant’ Displacement of permanent jobs Access to permanent jobs: recruitment training Temp to perm fees Less pay Agency Dockers at a London port are paid significantly less for doing the same work as permanent staff. One of the pay rates for permanent workers is £15 an hour, while agency staff earn just £8 an hour for the same work. Holiday and sick pay is also denied to agency staff although the union (T&G) managed to win holiday pay for workers from one of the agencies last year. Others are too afraid to ask for their rights for fear of being laid-off. No Flexibility for mothers A married woman in the Midlands, with three children under the age of 5 was offered work through an agency specialising in recruiting supply teachers and nursery nurses. The following day the work offer was withdrawn on the grounds that the prospective employer thought that she would be taking time off on an ad hoc basis to take care of her children and would therefore be unreliable. A female care assistant working in a residential home in East Anglia and employed by an agency approached the local CAB in 2000 saying that she was planning to get pregnant but was concerned that she would not be offered work while she was pregnant due to the nature of her work, i.e. lifting residents. She returned to the Bureau in 2002, now six weeks pregnant. Her employer had stated that her employer would not provide her with alternative work and had suggested that as her contract was for ‘flexible hours’ that they could claim that they had no more work for her. No job security: we don’t like your face so you’re out! And the first to be made redundant. BT call centre staff Displacement of permanent jobs Debra Allonby worked part-time as a technology lecturer. In 1996 and all other part-timers were sacked and then re-employed through agency Education Lecturing Services. Although she was teaching the same courses to the same students she was paid three quarters of her previous income, received no sick pay and was excluded from the College’s occupational pension scheme. Temp to perm fees: the transfer fee George, a long distance lorry driver from Bromsgrove, had only done a few weeks’ agency work when he was offered a permanent job by another transport firm. Even though George had applied for the job before starting with the agency, he has been told he can’t take the permanent job unless his future employers pay the agency £2,600 for ‘poaching’ him. George commented ‘The company relies on the agency to supply other staff and they don’t want to rock the boat. They want me to do the job but they’re not prepared to pay £2,600 for me.’ Less pay Agency Dockers at a London port are paid significantly less for doing the same work as permanent staff. One of the pay rates for permanent workers is £15 an hour, while agency staff earn just £8 an hour for the same work. Holiday and sick pay is also denied to agency staff although the union (T&G) managed to win holiday pay for workers from one of the agencies last year. Others are too afraid to ask for their rights for fear of being laid-off. No Flexibility for mothers A married woman in the Midlands, with three children under the age of 5 was offered work through an agency specialising in recruiting supply teachers and nursery nurses. The following day the work offer was withdrawn on the grounds that the prospective employer thought that she would be taking time off on an ad hoc basis to take care of her children and would therefore be unreliable. A female care assistant working in a residential home in East Anglia and employed by an agency approached the local CAB in 2000 saying that she was planning to get pregnant but was concerned that she would not be offered work while she was pregnant due to the nature of her work, i.e. lifting residents. She returned to the Bureau in 2002, now six weeks pregnant. Her employer had stated that her employer would not provide her with alternative work and had suggested that as her contract was for ‘flexible hours’ that they could claim that they had no more work for her. No job security: we don’t like your face so you’re out! And the first to be made redundant. BT call centre staff Displacement of permanent jobs Debra Allonby worked part-time as a technology lecturer. In 1996 and all other part-timers were sacked and then re-employed through agency Education Lecturing Services. Although she was teaching the same courses to the same students she was paid three quarters of her previous income, received no sick pay and was excluded from the College’s occupational pension scheme. Temp to perm fees: the transfer fee George, a long distance lorry driver from Bromsgrove, had only done a few weeks’ agency work when he was offered a permanent job by another transport firm. Even though George had applied for the job before starting with the agency, he has been told he can’t take the permanent job unless his future employers pay the agency £2,600 for ‘poaching’ him. George commented ‘The company relies on the agency to supply other staff and they don’t want to rock the boat. They want me to do the job but they’re not prepared to pay £2,600 for me.’

10. Current Legal Context Employment Agencies Act 1973 Conduct of Employment Agencies and Employment Business Regulations 2003 Gangmasters Licensing Authority Employment status: employee or worker?

11. Deficiencies in Current Legal Framework Discrimination against agency workers in terms of pay and conditions = lawful Uncertainty over employment status – who is the employer? Absence of Licensing Transfer or ‘temp to perm’ fees may be charged Up-front fees – entertainment sector

12. Agencies for change …Policy Context Proposals for a Temporary Agency Worker Directive (TAWD) DTI Employment Status Review Success at Work – ‘Vulnerable’ Workers

13. Background to TAWD Recognition of growing importance of ‘flexible’ forms of working Need to reconcile flexibility with job security through principle of “non-discrimination” Proposal for 3 directives: part-time, fixed-term and temporary agency workers

14. TAWD: What would it do? Equal treatment for agency workers With staff employed directly by user enterprise over pay and other basic working and employment conditions

15. TAWD: Where are we now? 2002: Commission proposal for directive on working conditions for temporary agency workers 2002 – present: progress stalled: – but equal treatment rights already exist in at least 16 of 25 EU countries! Arguments over qualifying period and removal of restrictions UK government leading blocking coalition

16. TAWD: TUC Priorities Equal Treatment from day one 71% of agency workers would lose out with a 12 month qualifying period 33% of agency workers have been assigned to current employer for less 3 months Effective and workable comparators, including hypothetical comparators

17. Employment Status Review: A Lost Opportunity S23 gives Govt the power to act without need for primary legislation To extend existing employment rights To cover unprotected groups

18. Defining status: the principles Presumption that all are covered Any exclusions would have to be justified Burden of proof on the employer Courts look at reality of the employment relationship

19. Success at Work: the Government Response No legislation on employment status: current worker / employee confusion to remain More guidance on existing rights ‘No’ to domestic regulations while TAWD remains ‘live’ Limited proposals on agency worker abuses: Consultation on additional services, loan repayments, cooling off periods on fees, drivers ‘Vulnerable’ worker pilots

20. Flexibility or fairness: Why not both? New protections for agency workers Not create unemployment Not reduce demand for agency workers? Assist in generating productivity Increased access to training Improve quality of service Increasing the pool of workers Morale/Teamwork

21. Any Questions?

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