Apex Resources Limited: Managing & working with the AWR

Transcription

1 Apex Resurces Limited: Managing & wrking with the AWR Please Nte: Frm 1st Octber 2011 the Agency Wrkers Regulatins cme int effect. Index 1 t 14 pages Intrductin & Backgrund int the Agency Wrkers Regulatins (AWR) The Facts 1 25 main pints Myth Busters Our respnsibilities Infrmatin abut cmplying with the Swedish Dergatin pay vehicle mdel Infrmatin abut cmplying with the PAYE/Umbrella Cmparable pay vehicle mdel What happens if a wrker brings a claim Our Apprach Infrmatin frm Hirers and Agencies Agency Wrkers Regulatins Intrductin AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 1

2 Agency Wrkers Regulatins The Agency Wrkers Regulatins (AWR) are due t cme int frce n 1st Octber Apex Resurces Ltd have put tgether this dcument t try and better prepare and update ur clients and ur custmers n their bligatins and new respnsibilities as sn as this legislatin becmes active. General backgrund EU regulatins already enshrine equal treatment fr part-time and fixed-term wrkers. The aim f the EU Agency Wrkers Directive was t extend this principle t agency wrkers. Initial drafts f the EU Directive were blcked in Brussels fr many years fllwing lbbying campaigns by REC and ther business bdies. Equal treatment fr temprary wrkers has been in peratin in many ther Eurpean cuntries since the 1980s and 1990s. A main debating pint was at what stage equal treatment shuld kick-in trade unins and mst natinal Gvernments calling fr it t be frm day ne f an assignment, business rganisatins calling fr a dergatin perid. In 2008, there were n lnger enugh cuntries blcking the Directive in Brussels. The UK Gvernment agreed a cmprmise deal with business and unins whereby equal treatment wuld apply after 12 weeks f an assignment. Fllwing the agreement in Brussels, discussins mved n t hw the Regulatins shuld be implemented in the UK. Fllwing tw cnsultatin phases, the Gvernment published the final versin f the UK Regulatins in January The Department fr Business, Innvatin and Skills (BIS) als published its final guidance n the AWR in May The Gvernment has reviewed a few specific areas within the Regulatins. At the beginning f August, the Agency Wrkers (Amendment) Regulatins 2011 were published t amend the Agency Wrkers Regulatins These amendments are relatively minr and where needed have been indicated thrughut this dcument. In summary, the Regulatins prvide fr rights that apply frm day ne f an assignment, as well as further rights that apply after a 12 week qualifying perid. These rights are discussed in mre detail later in this dcument. The Facts 1. When d the Regulatins cme int frce? The Regulatins cme int frce n 1st Octber Time spent wrking n an assignment befre that date des nt cunt fr the purpse f cunting the 12-week qualifying perid. Therefre, fr thse agency wrkers already n an assignment, access t day ne rights starts n 1 st Octber, and the 12 week qualifying perid begins t run frm this date. 2. Wh d the Regulatins apply t? The Regulatins apply t: individuals wh wrk as temprary agency wrkers temprary wrk agencies ; and hirers AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 2

3 As defined by the Regulatins, an agency wrker means an individual wh is supplied by a temprary wrk agency t wrk temprarily fr and under the supervisin and directin f a hirer, and has a cntract f emplyment with the agency r any ther cntract with the agency t perfrm wrk and services persnally. Nte: This includes PAYE wrkers, Umbrella wrkers & sme Limited Cmpany wrkers. A temprary wrk agency is defined by the Regulatins as a persn (whether an individual r a cmpany) engaged in the supply f temprary agency wrkers. Therefre, this definitin als cvers Umbrella cmpanies r Limited Cmpanies if they are invlved in the supply f agency wrkers. 3. Individuals wh may fall ut f scpe f the Regulatins: The self-emplyed - Self-emplyed wrkers are nt autmatically excluded frm the Regulatins. It is nt the emplyed/self-emplyed status f the wrker that is determinative f whether an individual is an agency wrker, but whether the wrker has been supplied, and whether they are under the supervisin and directin f the hirer. Where these elements are present, the wrker will still fit the definitin f an agency wrker, and therefre the Regulatins will still apply Individuals wh find wrk thrugh a temprary wrk agency but are a business in their wn accunt Wrkers wh are hired via their wn persnal service cmpany if they are self-emplyed - These wrkers will nly be excluded frm scpe prvided the crrect cntract(s) are in place. As abve, the fcus is nt n the emplyment status f the wrker, but whether there is supply, supervisin and directin. Wrkers, such as cleaners, wh wrk via managed service arrangements Individuals wrking n managed service cntracts, where the wrker des nt wrk under the directin and supervisin f the hirer - It is imprtant t nte that in rder t be taken ut f scpe this must be a genuine managed service arrangement. In ther wrds, there must genuinely be n supervisin and directin n the part f the hirer. Individuals wh find direct emplyment with an emplyer thrugh an emplyment agency Thse wrking under the supervisin and directin f the supplier rather than the hirer Individuals n lan r secndment frm ne emplyment agency t anther. This is where the main activity f the rganisatin secnding the individual is nt the supply f wrk temprarily under the supervisin r directin f anther party This applies nly where it is nt a tripartite arrangement i.e. the equivalent t a direct hire. Individuals wrking fr in huse temprary staffing banks where a cmpany emplys its temprary wrkers directly Further, Regulatin 3(2) prvides fr an exclusin frm the Regulatins which may take an individual ut f scpe where the crrect cntract is in place and the actual arrangements reflect the cntract. Hwever, the Regulatins can apply t wrkers cntracted t an "umbrella cmpany" as an umbrella cmpany fits the definitin f a temprary wrk agency fr the purpse f the Regulatins. This means wrkers wh wrk thrugh a service cmpany, but wh are nt self emplyed. This is the same thing that applies t PAYE candidates. 4. Will the Regulatins change the emplyment status f agency wrkers? AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 3

4 N. The Regulatins will nt change the status f temprary agency wrkers and will nt make them emplyees. 5. Will the Regulatins give yur direct emplyees any rights? N. The Regulatins will nt give emplyees r directly engaged wrkers any rights and therefre if an agency wrker is paid mre than a cmparable emplyee r directly engaged wrker, the Regulatins will nt give the emplyee the right t be paid mre. 6. What rights will the Regulatins give agency wrkers? The Regulatins will give agency wrkers access t certain rights frm day ne f an assignment (which are the hirer s respnsibility), and after 12 weeks in the same rle with the same hirer, an entitlement t equal treatment in relatin t the basic wrking and emplyment cnditins as if they had been emplyed directly by the hirer. In many cases this will mean that agency wrkers will be entitled t the same rate f pay as a cmparable emplyee r directly engaged wrker, but they are nt entitled t get t all f the terms and benefits that the cmparable emplyee gets. Nte, that there can be a difference in pay fr an emplyee and pay fr a wrker. S where an agency wrker wuld have been directly engaged as a wrker, as ppsed t an emplyee, they will be entitled t the same rate f pay as the wrker. 7. What des equal treatment include? The Regulatins will require equal treatment in respect f the 'relevant terms and cnditins' rdinarily incrprated int the cntracts f thse wrking in the hirer. This means the relevant terms and cnditins in cllective agreements, relevant pay scales and terms generally included in cntracts f emplyment. 'Relevant terms and cnditins' are defined as: pay the duratin f wrking time night wrk rest perids rest breaks annual leave. Hwever these rights are subject t a 12-week qualifying perid (see questin 10) 8. Hw will pay and hliday be calculated? In the Regulatins, 'pay' means basic pay, plus any fee, bnus, cmmissin, r ther payment directly referable t the emplyment, such as vertime r unscial hurs payments. The rate t take int accunt is the rate that wuld be paid n day ne in ther wrds, a starter rate. Bnuses d nt include lng-term lyalty bnuses, but d include perfrmance bnuses prvided they relate t the quality r quantity f wrk and nt lyalty r lng service. This means that sme hirers will need t set up a prcess fr mnitring the wrker's perfrmance, althugh there will be n bligatin t prvide the same appraisal system as yur emplyees receive. Any 'appraisal like' system that may be set up fr agency wrkers this purpse shuld nt amunt t evidence that an agency wrker has gained emplyee status. AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 4

5 The hliday entitlement includes any entitlement abve the statutry minimum requirement f 28 days per annum including bank hlidays, which in mst cases will mean the relevant cntractual entitlement applicable t the hirer's emplyees r directly engaged wrkers. The Regulatins allw payment t be made in lieu f hliday entitlement abve the statutry minimum either as part f the daily/hurly rate r at the end f the assignment. 9. Des equal treatment include ccupatinal pensins, sick pay, maternity pay and similar payments? N. The definitin f pay in the Regulatins excludes: ccupatinal / cmpany pensins ccupatinal sick pay maternity, paternity r adptin leave pay redundancy pay lans health and life insurance r assurance share ptin schemes 10. Hw will the 12-week qualifying perid be calculated? Any perid f wrk (full r part-time) carried ut by the agency wrker fr the hirer in a calendar week will make that week cunt twards the 12-week qualifying perid. Once an agency wrker has wrked in the same rle fr the same hirer fr 12 cntinuus calendar weeks (regardless f hw many hurs he r she wrks each week) they will qualify fr equal treatment in relatin t the basic wrking and emplyment cnditins. It des nt matter whether he r she has cmpleted the 12 weeks in a single assignment r in a number f assignments, and whether it is thrugh the same agency r different agencies, as it is the time spent with the hirer that matters. S in thery yu shuld keep nte f agency wrkers wh are wrking fr yu thrugh varius agencies t mnitr whether they becme an agency wrker that inherits the AWR rights whilst wrking fr yur cmpany thrugh an agency. Fr the purpses f calculating the qualifying perid, cntinuity will nrmally be brken by a break f mre than six weeks between assignments in the same jb, r when an agency wrker takes up a new rle with the hirer where the whle r main part f the duties in the new rle are substantially different frm the whle r main part f the duties in the ld rle. BIS have issued guidance n what "substantively different" means, suggesting amngst ther things, t lk at the differences between the skills and attributes required fr the rles. Hwever, the fcus must be n whether there is a genuine and real difference between the rles. Nte, that in the event f dispute, a cmbinatin f factrs may be taken int accunt by the Tribunal in determining whether r nt the rles are substantively different. Hwever breaks between assignments due t a number f specified reasns, such as sickness (f up t 28 weeks), jury service r predetermined clsure perids (e.g. schl clsures during hlidays) will nt break the qualifying perid. Instead the 'clck is paused'. Fr example, if a wrker wrks fr 11 weeks in a schl, and the schl clses fr six weeks, when the agency wrker returns their first week back will be week 12 fr the purpses f the qualifying perid. The situatin is different in the case f absence related t pregnancy, childbirth r maternity during the "prtected perid", and fr maternity, paternity r adptin leave. In such cases the wrker is fr the purpses f calculating the 12- week perid deemed t cntinue wrking in their rle fr the riginal intended length f the assignment, r likely duratin f the assignment, whichever is lnger. The "prtected perid" starts at the beginning f the pregnancy and ends at the end f the 26th week frm childbirth, r when the wrker returns t wrk, if earlier. AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 5

6 11. Will the 12-week qualifying perid be brken if the agency wrker is placed with the same hirer fr a secnd assignment, but thrugh a different agency? N, nt unless the gap between assignments is mre than six weeks r the new rle is a substantially different t the first ne. This is because the 12-week qualifying perid is calculated by reference t service with the hirer, irrespective f which agency places the wrker. Because f this, lcal authrities shuld put in place prcedures with their agencies and agency wrkers t check whether the wrker has wrked fr them in a previus assignment. 12. What abut access t jb vacancies and cllective facilities and amenities? Under the Regulatins, it is the hirer s respnsibility t ensure that during an assignment an agency wrker is treated n less favurably than a cmparable wrker in relatin t access t cllective facilities and suitable jb vacancies. Access t these is a 'day ne' right and is nt subject t the 12-week qualifying perid. Therefre, fr thse agency wrkers already n an assignment, access t day ne rights starts n 1 st Octber. The right t access t jb vacancies means the right t be infrmed f relevant vacancies with the hirer. In practice this means that agency wrkers shuld be prvided with the same vacancy lists that cmparable emplyees r directly engaged wrkers receive r have access t. Hwever, the hirer can still perate 'clsed' prcesses in redeplyment situatins where there is a headcunt freeze and cnsequently there are nt any vacant psts. Cllective facilities include canteens, childcare facilities and transprt services, and unless bjectively justified, agency wrkers must be given the same access t thse facilities as ther cmparable wrkers (nt just emplyees) receive. BIS guidance prvides further examples n what benefits may fall int the categry f cllective facilities and n the issue f bjective justificatin. The guidance suggests that transprt services des nt include seasn ticket lans and cmpany cars. The bjective justificatin defence fr the hirer is essentially the nly element f the Regulatins where there can be bjective justificatin fr less favurable treatment. It simply means that a hirer can refuse t prvide access t cllective facilities if there is a genuine bjective reasn fr ding s. Fr example, where a crèche is full and has a waiting list, the hirer culd refuse t ffer a place n the grunds that there are n vacancies. Nte: The Regulatins d nt prvide agency wrkers with enhanced access t these rights, but simply that these rights are made available. 13. What prtectin will the Regulatins prvide fr pregnant and new mther agency wrkers? Pregnant agency wrkers wh have met the 12-week qualifying perid are entitled t take paid time ff fr ante-natal appintments. The agency is primarily respnsible fr prviding this right, and fr paying the wrker fr the time ff. Hwever, lcal authrity hirers shuld ensure that practical arrangements are put in place s that the wrker is able t take the time ff. Hirers, as nw, will be required t carry ut risk assessment fr pregnant wrkers, and where a risk is identified make reasnable adjustments t remve the risk. Where that is nt pssible, under the Regulatins the agency will be respnsible fr ffering alternative wrk, and where that is nt pssible, fr paying the wrker fr the remainder f the assignment fr any perid that she cannt wrk due t the health and safety risk. There is n bligatin n hirers t keep a rle pen fr an agency wrker wh is n maternity leave. 14. Hw d I wrk ut what an agency wrker will be entitled t? AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 6

7 The right is t equal treatment in respect f basic wrking terms and cnditins as if the agency wrker had been emplyed directly t d the same jb n day ne (see questin 6 abve). Althugh in sme cases that culd mean a relatively speculative assessment f what thse terms wuld be, the Regulatins prvide that equal treatment is deemed t have been prvided where the wrker receives the same relevant terms and cnditins as a cmparable emplyee wrking fr the hirer. Therefre, hirers will need t wrk ut t extent t which the agency wrker's basic wrking terms and cnditins match thse f a cmparable emplyee r directly engaged wrker. Fr example, lcal authrities emply a large number f peple in a variety f rles, in mst cases it shuld be relatively straightfrward t identify a cmparable emplyee. Where incremental pay and benefit scales are in place, the default psitin shuld be that the agency wrker is paid at the bttm f that pay scale, as a new emplyee r directly engaged wrker wuld be paid n day ne. 15. Wh will be respnsible fr prviding equal treatment? Respnsibility fr day ne rights lies with the hirer. Liability fr failure t ensure equal treatment in relatin t the basic wrking and emplyment cnditins (the 12 week rights ) can lie with either the agency r the hirer fr the extent t which they are respnsible fr that breach. Hwever, an agency may be able t defend a claim and the hirer will becme liable if the agency can shw that it tk "reasnable steps" t btain the necessary infrmatin frm the hirer t determine the agency wrkers' basic wrking and emplyment cnditins and treated the agency wrkers accrdingly. Therefre, lcal authrities as hirers will have t ensure that they set up systems fr prviding their agencies with apprpriate infrmatin n the terms and cnditins that are in place in their cmpany. 16. Hw will the Regulatins be enfrced and what are the liabilities fr nn-cmpliance? An agency wrker will be able t bring a claim in an Emplyment Tribunal t enfrce their rights under the Regulatins, against the agency and/r the hirer. Cmpensatin fr a breach will be calculated by tribunals n a "just and equitable" basis, with n upper limit n awards. Liability fr the award between the agency and the hirer will be determined by the emplyment tribunal, accrding t the extent t which it finds the agency and/r the hirer liable fr the breach. 17. Hw will agency wrkers be able t find ut whether they are receiving their rights? After meeting the 12-week qualifying perid, an agency wrker can ask their agency fr relevant infrmatin abut the basic terms and wrking cnditins in the hirer. If the agency fails t prvide the infrmatin within 28 days f the request (r the request is abut access t cllective facilities) the agency wrker may make the request direct t the hirer, wh then has 28 days t respnd. Where the agency and/r hirer fails withut reasnable excuse t respnd r the respnse is late, evasive r equivcal, then in any emplyment tribunal prceedings that may fllw, the tribunal can draw an inference frm the failure r delay that the temprary wrk agency r the hirer has infringed the right in questin. Nte: an agency wrker is under n bligatin t make a request fr such infrmatin prir t bringing a claim, this prcedure is ptinal. 18. Will the Regulatins mean an increase in the cst f agency wrkers wh wrk in assignments fr mre than 12 weeks? This will depend n whether the agency wrkers in questin are paid less than a cmparable emplyee. Where the agency wrker is paid mre, then the csts impact f the Regulatins will nt be substantial, althugh there will still in mst cases be an increase in nn-pay entitlements, such as hliday (remember that hliday pay is included in the AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 7

8 definitin f pay under the Regulatins). Where an agency wrker is paid less, the increase in csts will be mre substantial, althugh there will still be savings in respect f pensin and in sme cases sick pay. This being said, it is imprtant t ensure that the cmparable hurly rate f pay is carefully calculated, including factrs such as whether a cmparable emplyee r wrker is paid during lunch breaks. It is nt safe t assume that simply because highly paid cntractrs earn mre than a cmparable emplyee r wrker that the Regulatins will nt have an impact. 19. What d authrities need t d t prepare fr implementatin f the Regulatins? It is imprtant fr clients using agency wrkers t wrk ut nw what the ptential impact f the Regulatins will be n their cmpany. Apex Custmers/Hirers shuld carry ut an assessment f their agency wrker use, lking at factrs such as the nrmal length f assignments t see hw ften the 12-week qualifying perid will be met. Custmers/Hirers shuld als review their agency wrkers' rles t see if there are cmparable emplyee psts, and wrk ut whether the agency wrker is paid a lwer rate than the cmparable emplyee r directly engaged wrker, taking int accunt nt nly basic pay but ther payments such as vertime. Having dne this exercise, it may be that any increase in csts arising frm the Regulatins may be less than anticipated, as in certain cases agency wrkers are paid mre than cmparable emplyees. Hwever, where services are utsurced, ur custmers shuld cnsider whether the Regulatins culd increase the wage bill in their service prviders, which culd have a knck n effect n the csts f thse services. Hirers shuld als agree with Apex n the agencies systems that can be set up fr prviding us with the apprpriate infrmatin n terms and cnditins that are in place in the hirer s cmpany fr all agency wrker types that they intend t use, s that wrkers' entitlements can be met, cmpared etc. The parties shuld als agree prcesses fr checking whether a wrker has r will sn meet the 12-week qualifying perid. 20. Where des liability lie when it cmes t having apprpriate and sufficient indemnity insurance and similar? The new Regulatins d nt change the emplyment status f agency wrkers - they cntinue t be emplyed by the agency, rather than the hirer, prvided that apprpriate agreements r arrangements are in place cnfirming this. This means there is n change arising frm the new regime in respect f insurance. Hirers are nt required t take ut emplyers' liability insurance in respect f agency wrkers as they d nt emply them. But they must ensure the relevant insurance cver is in place. (Please see attached) 21. What rights will agency wrkers have t paternity leave? The agency wrker must accrue 26 weeks f service ending 14 weeks befre the week f childbirth befre exercising the right t paternity leave under existing legislatin (paternity rights are prvided fr under the Emplyment Rights Act 1996) if emplyed by the agency r hirer. Hwever, paternity pay is excluded frm the definitin f pay under the AWR. 22. Tribunal claims against Apex / Apex Custmers ptential: Agency wrkers will als have the right nt t suffer a detriment as a result f asserting their rights under the regulatins r where they are believed r suspected t be asserting such rights. Agency wrkers that are emplyees f an agency r umbrella cmpany will als have sme limited unfair dismissal rights. Basically, these unfair dismissal rights apply when an agency wrker can shw that he r she was dismissed fr reasns cnnected t the AWR. Agency wrkers can bring AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 8

9 claims against the agency and/r hirer fr failure t pay him r her n the same basis as an emplyee r wrker engaged directly by the hirer (yu ur client), and/r claim breach f cntract. Alternatively, if assignments are structured in a way t prevent the agency wrker frm accruing 12 weeks' service a claim can be brught n this basis against the agency r the client the agency is supplying. Frm research we have seen guidance that cmpensatin will be calculated upn a just and equitable basis and shall nt be less than tw weeks' pay.. Where the structuring f assignments is fund t breach the Regulatins, the tribunal may make an additinal award f cmpensatin f up t 5,000 fr each instance f breach. It's imprtant t nte that the AWR d nt give agency wrkers emplyee status. If there is sme argument ver what is meant by equal treatment, agency wrkers will be able t cmpare their rights t thse f directly engaged wrkers ding similar r bradly similar wrk. 23. Hw this affects ur custmers: If yu hire labur thrugh an agency yu shuld prvide yur agency with up t date infrmatin n yur terms and cnditins, s that they can ensure that an agency wrker receives the crrect equal treatment, as if they have been recruited directly after 12 weeks in the same jb. Yu are respnsible fr ensuring that all agency wrkers can access yur facilities and are able t view infrmatin n yur jb vacancies frm the first day f their assignment with yu. Apex can cnfirm that the mdel being used fr the AWR fr agency wrkers being paid by Apex will be generally n a cmparable mdel (this is fr agency wrkers being engaged/paid via a PAYE r PAYE Umbrella engagement). 24. If yu are an agency wrker: Frm 1st Octber 2011, after yu have wrked in the same jb fr 12 weeks, yu will qualify fr equal treatment in respect f pay and basic wrking cnditins. Agency wrkers currently n assignment will als be entitled t the day ne rights frm 1st Octber. Yur agency is likely t ask fr details f yur wrk histry t help t establish when yu are entitled t equal treatment and whether there is a cmparatr directly emplyed wrking n the same prject (a cmparatr is an emplyee r directly engaged wrker f the hirer cmpleting the same r bradly similar duties as yu). 25. Where can I find further guidance n the Regulatins? The Department fr Business, Innvatin & Skills has prduced guidance n the Regulatins, available n its website. Myth Busters Q&A Q) An agency wrker will becme the clients emplyee after 12 weeks? A) False Q) AWR will mean that the flexibility f using temprary resurce will be lst, clients will nt be able t terminate assignments when they need t? A) False Q) Clients can hire agency wrkers thrugh different agencies t avid AWR? A) False Q) Only agencies have liability? AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 9

10 A) False Q) Emplyed Staff can claim the same rights as agency wrkers under AWR? A) False Q) If my agency uses the Swedish Dergatin all f the the AWR wn t apply? A) False Q) We can get rund the Regulatins by mving agency wrkers every eleven weeks? A) True and False. Where it is a genuine requirement that an agency wrker wrks fr less than 12 weeks this will nt breach the Regulatins. Hwever, it is imprtant t be aware f the anti-avidance prvisins under Regulatin 9 which aim t stp assignments being structured in such a way t avid being caught by the Regulatins. Our Respnsibilities as f 1 st Octber 2011: It is the respnsibility f everyne t ask the questin if there is a cmparatr. It is then the respnsibility f the ne wh has been asked t then either ask the next in line t fulfil their respnsibility r answer the questin. Directrs and HR departments shuld be readying themselves with the agencies they use, especially if they regularly use agency wrkers t determine hw lng yu currently need t use agency wrkers fr at a time, what are yur agency labur needs and d yu directly emply wrkers that are n a higher pay rate than the agency wrkers being supplied t yu. D nt think this applies nly t bdies supplied by temp agencies. The AWR cver direct emplyed PAYE temps, wrkers wh supply their services thrugh an umbrella cmpany and thse wh are supplied by a temp agency. Businesses that have traditinally relied n emplying large numbers f temprary staff shuld review cntracts and business prcesses relating t agency wrkers. Frm Octber, any changes made t the terms and cnditins f permanent emplyees must be replicated in the cntracts f temprary staff wh have achieved the 12-week service requirement. Apex will cnfirm that agency wrkers supplied frm the first day f wrk als have access t all facilities that wrkers emplyed directly by ur clients have, such as canteen and childcare facilities and ntified f internal client vacancies. Subsequently Apex will cnfirm that after 12 weeks cntinuus wrk r nce the 12 week qualifying perid is reached by an agency wrker with a particular client we are supplying the agency wrker(s) t, that these agency wrkers will then qualify fr the AWR and will remind yu that they shuld nw get the equal treatment entitlements extended i.e. pay rates and ther basic wrking cnditins including annual leave & rest breaks. We will ask yu fr any infrmatin needed that yu have nt already prvided in respect f the cmparable emplyee. T try and give everyne as much ntice t prepare fr any ptential fr the agency wrkers qualifying fr the AWR, Apex will be als be asking ur clients abut the expected duratin at the time f rder and thrughut if it lks likely fr a wrker t qualify. Apex will als be asking abut the pay and basic wrking cnditins f yur wn staff in a similar rle, at the start f any assignment and again when it is clear that they will be in the same jb fr mre than the 12 week qualifying perid, s we can pass n this infrmatin t the agency wrker- s they knw they are being treated fairly frm day ne and frm when / if they qualify fr the AWR. AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 10

11 Apex have varius types f wrker emplyment engagements, usually set and agreed at the beginning f any assignment. If wanted/asked we can cnfirm whether we have engaged the agency wrker with ne f the fllwing: PAYE PAYE Umbrella Self Emplyed Grss fr the Self Emplyed this suits Depending n the engagement f emplyment thrugh the emplyment business wh supply yu the agency wrker, depends n exactly which AWR mdel yu will need t manage this prcess. Yu need t be infrmed f the agency wrkers engaged emplyment arrangement and if they have entered int a frmal emplyment relatinship with agency wrkers. Fr instance, by knwing the emplyment engagement f the temprary agency wrker, yu can better determine the instances where a particular agency wrker is nt bliged t all the benefits f the AWR as they d nt have t agree t prvide persnal service r t accept wrk if it is ffered, and s are nt integrated int the end-user's rganisatin t the same extent as its direct emplyees. The tw AWR mdels are the Swedish Dergatin Mdel and the PAYE Umbrella mdel: Cmplying with AWR using the Swedish Dergatin Mdel Essentially, the Swedish Dergatin is an arrangement whereby the agency wrkers right t equal pay des nt apply. The Swedish Dergatin is a mdel which many umbrella cmpanies may be ffering. In this situatin, individuals must be engaged n a permanent cntract f emplyment with the umbrella cmpany (r temprary wrk agency) under varius terms and cnditins laid dwn by Regulatin 10. Where the crrect cntract exists, and the crrect terms and cnditins are in place, the agency wrker will be unable t claim equal pay rights. When shuld yu cnsider putting candidates thrugh a Swedish Dergatin umbrella structure? > When n cmparatr data is available > N pay scales are in peratin > Pay appears t be belw that f the cmparatr > Lnger cntracts f arund 12 mnths (why? - It wuld cmmercially be unsund t pay a temprary wrker a minimum f 4 weeks pay nce they cmplete a 3 mnth cntract. It is much mre cst effective t distribute this cst ver a perid f 12 mnths) When shuld yu NOT cnsider putting a candidate thrugh a Swedish Dergatin umbrella structure? > When their rate is belw > When they are n a temp t perm cntract > When they have n intentin f carrying ut multiple assignments It is imprtant that the temprary wrker cnfirms that they are happy t be remved frm the entitlement t equal pay. As cmpensatin fr this, under the Swedish Dergatin mdel they will receive pay in perids under the cntract when they are nt wrking but are available t wrk. Since the amendment f the Regulatins, the bligatin t pay and seek suitable wrk des nt take effect until after the end f the first assignment. It is imprtant t pint ut that even thugh the Swedish Dergatin Mdel remves the need t meet cmparable pay, all ther rights under AWR must be cmplied with. There are sme expectatins when pay between assignments is nt required t be paid. These are: AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 11

12 > If the wrker is nt available fr wrk > When the wrker resigns > If the wrker refuses acceptable wrk Cmplying with AWR using the Traditinal Umbrella Cmpany Mdel >This mdel cntinues t wrk perfectly well where it can be shwn that the wrker is receiving equal pay frm their umbrella emplyer. Nte: This includes PAYE wrkers, Umbrella wrkers & sme Limited Cmpany wrkers. When shuld Apex cnsider putting candidates thrugh a traditinal umbrella structure? > When yur candidates pay is equal t r greater than that f a cmparable emplyees. When shuld yu NOT cnsider putting a candidate thrugh a traditinal umbrella structure? > When their rate is belw > When they are n a temp t perm cntract > When they have n intentin f carrying ut multiple assignments What is the main AWR risk assciated with a traditinal umbrella? >The main risk is where the wrkers pay falls belw pay scale rates f the cmparable wrker's pay. >Where a wrker is unable t claim expenses, and therefre cannt benefit frm the additinal tax relief, it is pssible that their verall remuneratin culd fall belw that f a cmparatr r pay scales fr their rle. >Anther risk fr recruitment agencies and umbrella cmpanies is annual pay awards. Where a hirer perates acrss the bard pay awards fr its wrkers, the recruitment agency must als give the temprary wrker an equivalent rise hence wuld have t charge the client mre t achieve this. Swedish Dergatin The AWR exemptin frm equal treatment prvisins n pay fr the 'Swedish dergatin' mdel has attracted a lt f interest frm umbrellas saying that this exemptin remves the wrker frm AWR. This mdel invlves an umbrella cmpany engaging a wrker n a permanent cntract f emplyment and paying the agency wrker between assignments fr a perid f n less than 4 weeks. Hwever, all wrkers, including thse n 'Swedish dergatin' cntracts f emplyment, are entitled t equal treatment in relatin t the duratin f wrking time, night wrk, rest perids and rest breaks and entitlement fr hliday (althugh nt hliday pay). Further, under the Swedish Dergatin mdel, because there has t be a cntract f emplyment with the wrker, the umbrella (r temprary wrk agency) will have t take n all the nrmal respnsibilities f the emplyer e.g. be respnsible fr statutry emplyment rights etc. What happens if a wrker brings a claim? Any claims f nn-cmpliance under the AWR will be heard by the Emplyment Tribunals. A wrker has t bring a case within 3 mnths f becming aware f the issue r 3 mnths frm the end f the cntract r assignment. The guidance makes it clear that all parties shuld attempt t reslve any disputes befre bringing a case t the tribunal. AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 12

13 Cases brught fr nn-cmpliance t equal treatment rights after the 12 week qualifying perid will be able t include all parties as ptentially liable. The minimum award will be equal t tw weeks pay with n maximum. Additinally, the tribunal als has the ability t award penalties where they feel anti-avidance tactics r intentinal abuse has ccurred. Our Apprach Is t ensure that the payrll cmpanies we wrk with are cmpliant and ffer bth a traditinal umbrella mdel tgether with a Swedish dergatin umbrella mdel. AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 13

14 Infrmatin frm Hirers and Agencies T enable the payrll prviders t assess which mdel will be apprpriate they will be asking fr the fllwing infrmatin: Infrmatin n cmparable emplyees and directly engaged wrkers (including pay, benefits, hliday, bnus and cmmissin). Details f past emplyment Details and clarity frm sectin What rights will the Regulatrs give agency wrkers Length and scpe f the assignment including start date (t assess the 12 week start date) this maybe with a past agency als. The AWR apply t Great Britain. Nrthern Ireland has a separate set f regulatins in line with their natinal law (Recruitment Emplyment Federatin link in relatin t the AWR) 2. T view the guidance, g t: agency-wrkers-regulatins-guidance.pdf Thank yu fr taking the time t read this dcument. We hpe that this dcument has helped yu better understand the legislatin cming int effect and all f ur respnsibilities t ensure cmpliance at all times. Please nte, that if yu have a questin that yu wish us t lk int and get back t yu, AWR@apexresurces.net Apex Resurces Ltd AWR detailed explanatins fr the clients and wrkers f Apex Resurces Ltd Page 14