Last weeks Spotlight conference was a great success yet again!  Thank you to everyone who visited our stand and a Big Congratulations to Choc n Box who won our raffle.  Hope you enjoyed your champagne!

On 1st October 2011 the Agency Workers Regulations (AWR) comes into force.  Designed by the EU to ensure that agency workers get no less favourable treatment with respect to basic employment and working conditions than a direct hire employee doing the same job.

Yours Sincerely has compiled the answers to some of your burning questions.

 1. What are the Agency Workers Regulations (‘the AWR’)?

A set of regulations which will provide all agency workers with a right to equal treatment with their directly recruited equivalents employed within a hirer’s organisation after 12 weeks in a given job. This is known as “the equal treatment principle”.

Some equal treatment rights will apply from day one of an assignment (these are known as “day one rights”. See question 9).

2. When will the AWR come into force?

The regulations come into effect on 1st October 2011. There is a 12 week qualifying period that commences from this date (see question 7).

3. Who do the regulations apply to?

All agency workers including those employed via umbrella companies or other intermediaries. Workers who are genuinely self-employed are excluded.

4. What does equal treatment cover?

Equal treatment will apply to the basic working and employment conditions of the agency worker such as:

• duration of working time
• overtime
• breaks
• rest periods
• night work
• public holidays
• pay (see question 5 and question 6)
• some terms and conditions ordinarily included in employee contracts (for example, collective agreements, pay scales, company handbooks)
• other matters of custom and practice in the workplace concerned (for example, access to facilities).

5. What does equal treatment in relation to ‘pay’ include?

This includes basic pay, plus other contractual entitlements directly linked to the work undertaken by the agency worker whilst on assignment, i.e.

• payment for overtime (subject to any requirements regarding the number of qualifying hours)
• shift allowances
• unsocial hour premiums
• basic pay
• payment for annual leave
• bonuses or commission payments that are directly linked to the quality or quantity of work done by an agency worker
• vouchers or stamps with a monetary value e.g luncheon or transport vouchers. Childcare vouchers are included unless they are funded on a salary sacrifice basis.

6. What is excluded from the meaning of ‘pay’?

Aspects of pay that are provided to employees in recognition of the long-term relationship between the employer and the employee, such as:

• profit sharing schemes
• occupational pension contributions
• occupational sick pay
• redundancy pay
• occupational maternity, paternity or adoption pay
• payment for time off for trade union duties
• notice pay
• advances in pay or loans
• expenses
• the majority of benefits in kind
• any payments that require an eligibility period of employment/service, if not met by the agency worker.

7. How is the 12 week qualifying period calculated?

It is 12 calendar weeks regardless of working pattern (full-time or part-time). A new qualifying period will begin under the following circumstances:

• a new assignment with a new employer commences
• a new assignment with the same employer is substantively different
• there is a break of more than 6 weeks between assignments in the same role.

The qualifying clock will pause under the following circumstances:

• any reason where there is a break in the assignment for less than 6 weeks
• sickness absence pauses the clock for up to 28 weeks
• annual leave
• shut downs (e.g. school holidays)
• jury service pauses the clock for up to 28 weeks
• industrial action

The qualifying clock “keeps ticking” during a period of pregnancy and maternity related absence.

 8. How will I know if a role is substantively different from a previous one so that the qualifying period begins again?

For this to be the case, the work or duties, which make up the whole or main part of a role, must be substantively different. Yours Sincerely and the hirer should consider a combination of factors such as:

• are the skills and competencies required for the role different?
• is there a change in reporting lines?
• is the location of the assignment different?
• are the working hours different?
• is the pay rate different?
• does the role require extra training – and/or a specific qualification that wasn’t needed before?
• is different equipment involved?

If a new role is substantively different Yours Sincerely will provide workers with a written description of the new work they will be required to undertake in a new role. The description of the new role will be provided before the new assignment starts.

9. What are my ‘day one rights’?

Some aspects of equal treatment apply before the 12 week qualifying period, i.e. from day one of the worker’s assignment. The regulations give agency workers the same access to certain facilities and information provided by the hirer. These include:

• access to information on job vacancies with the hirer (i.e. vacancy lists) except where the hirer is re-structuring their business as part of an internal re-organisation
• access to collective facilities and amenities (i.e. canteen, childcare, transport).

10. How is equal treatment on pay established where there are no permanent employees within the hirer’s business to compare the worker to?

National rates of pay for that role may be useful guidelines. The rate of pay will remain the same during and after the qualifying period of 12 weeks.

11. Can I obtain information about my equal treatment rights from the agency or the hirer?

Yes. But only if an agency worker requests this information after the 12 week qualifying period has elapsed. The agency (and the hirer) will have 28 days to respond to the worker’s request from the date it is received.

12. Would my assignments with other agencies with the same hirer count towards the 12 week qualifying period?

Yes Yours Sincerely will ask the worker about their recent employment history to ascertain whether the worker is nearing the qualifying period for equal treatment.

14. I have worked in an assignment for almost a year, why must the qualifying period commence as of the 1st of October?

The qualifying period is not retrospective and the qualifying period will start from 1st October 2011.