On 15th December 2010, the Employment and Learning Minister, Danny Kennedy, announced a public consultation on the policy proposals and draft regulations which will implement the Agency Workers Directive in Northern Ireland. This public consultation will close on Friday 11th March 2011 and the consultation document can be found on the Department’s website at:
http://www.delni.gov.uk/agency-workers-directive-consultation


What will the Agency Workers Directive mean for agency workers in Northern Ireland?

The Agency Workers Directive was adopted by European Member States in November 2008 and the Department for Employment and Learning is responsible for ensuring the implementation of the Directive in Northern Ireland by 5th December 2011.

The aim of the Directive is to ensure that agency workers receive the same basic working and employment conditions, including pay and holidays, as the permanent employees with whom they work.

There are several key points to note:

(a) Employment Status:

The Regulations do not change the employment status of agency workers. It is still the case that the vast majority of agency workers are not employees and as such do not have the right to pursue a claim for unfair dismissal. The Directive is concerned with the terms and conditions of agency workers only.

(b) Equal Treatment is Limited

The purpose of the Agency Workers Directive is to ensure that the principle of equal treatment is applied to agency workers. The Directive provides that basic working and employment conditions (working time, overtime, breaks, rest breaks, night work, holidays, public holidays and pay) of temporary agency workers shall be, for the duration of their assignment at the hirer, at least those that would apply if they had been recruited directly by that hirer to the same job.

(c) Qualifying Period for Most Rights

Crucially, equal treatment in basic working conditions will only apply after a 12-week qualifying period which reflects the Social Partnership Agreement between the UK Government, the CBI and the TUC in May 2008. The Department of Employment and Learning proposes that the same 12-week qualifying period will apply in Northern Ireland. However the consultation process will still seek consultee views on this important issue.

(d) Some Rights Apply from Day One

It also proposed that agency workers will acquire certain rights from day one of their assignment with a hirer and those rights relate to information about vacancies in the hirer’s establishment, the right to access a number of collective facilities including crèche and childcare facilities, canteen facilities and the provision of transport services. Access to these can be refused if there are objective grounds for doing so.

(e) NI Consultation

In Great Britain the Department for Business, Innovation and Skills (BIS) consulted on draft regulations to implement the Directive in GB during 2009 and the Agency Workers Regulations 2010 will come into operation in GB on 1 October 2011. The current consultation in Northern Ireland takes account of the BIS consultation and it is expected that in the main the proposed measures in Northern Ireland will be in line with those already legislated for within the GB Agency Workers Regulations 2010. It is likely that implementation will also take place in Northern Ireland on 1 October 2011 but, in any event, as with all EU Member States, the Directive must be implemented by 5th December at the latest.


Who will be covered by the legislation?

The proposed Regulations will only cover workers placed on temporary assignment by employment businesses, i.e. organisations introducing workers to hirers for temporary work. They will not cover workers finding permanent work through employment agencies, those who are genuinely self-employed or those working under a managed service contract.

The definition of agency worker in the draft regulations is fairly broad as the Government is keen to ensure that agencies and hirers do not circumvent the Regulations by putting complicated hiring structures in place. The upshot is that it will be for the temporary work agency and the hirer to establish whether the worker is genuinely self-employed or not and, if agreement cannot be reached, then an Industrial Tribunal will have jurisdiction to determine this issue.


Where a company has a single source for the provision of all contractors, does this fall into the Managed Service Contract exclusion within the proposed Regulations?

According to the Department’s consultation document, Managed Service Contracts are generally understood to concern the situation where a company provides a specific service for a client (such as IT support or catering) based on a contract for services specifying outputs and service levels. In these circumstances the then client is usually paying for the service rather than hiring individual agency workers to work under their supervision and direction. These types of Managed Service Contracts are excluded from the scope of the proposed Regulations.


Is there flexibility in terms of value of remuneration, e.g. less holidays for more pay or should there be a direct equivalent entitlement provided to agency workers?

Annual leave and holiday pay fall within the definition of basic working and employment conditions within the proposed Regulations. After completing the 12-week qualifying period agency workers will become entitled to the same working time and holiday as permanent employees of the hirer.

In practice few employers currently distinguish between agency staff and employees when it comes to the duration of working time, overtime, night work and rest because the Working Time Regulations (NI) 1998 already extends holiday entitlement to agency workers.

The consultation document issued by the Department of Employment & Learning proposes that agencies should be able to deal with any entitlement of agency workers above the statutory minimum by payment in lieu, either as a one off payment at the end of the assignment or as part of the hourly/daily rate. The Government in GB has indicated that it will provide guidance on this particular point through BIS.


If an agency worker applies for a vacancy and gets the job, will the agency have the right to apply a finder's fee?

This is not covered under the proposed Regulations. I would take the view that it is a matter for agreement between the hirer and the agency as part of their commercial agreement. It is not a matter relating to the agency worker's rights and therefore it would not be appropriate for it to be contained within the proposed Regulations.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations (Northern Ireland) 2010 came into force on 1 December 2010:
http://bit.ly/eFnwXF

The explanatory memorandum is here:
http://bit.ly/fV7LKG

These Regulations deal with, amongst other things, upfront fees charged by entertainment and modelling agencies; suitability checks for permanent recruitment; requirement to agree terms with work-seekers and more. A useful summary appears on the LRA website:
http://bit.ly/gfE9rM


Does the right for agency workers to access employment vacancies at the hirer’s establishment apply to internal trawls or only external recruitment?

The right of an agency worker to be informed by a hirer of ANY vacant posts with the hirer is expected to apply to both internal and external selection processes. This is explicit in the draft regulations. Similar rules apply to fix term employees.