Agency worker regulations – finally some clarity!

[TrueBlueTerrier]

http://emailcc.com/rv/ff000d94f14bcf10a ... e95#page=1" onclick="window.open(this.href);return false;

After 13 months, we have received the first reported decision concerning the Agency Worker Regulations (Northern Ireland) 2011 (AWR). This case concerned the “Swedish Derogation” exemption to the AWR.

Under the AWR agency workers are entitled to the same basic employment and working conditions as employees once they have completed a 12-week qualifying period. The Swedish Derogation (Regulation 10 of the AWR) is a way of avoiding liability for equal pay and holiday pay provided that certain conditions are met.

In this case the Claimant was employed by Monarch agency. It had a contract with BP for the supply of workers to drive BP’s tankers. BP’s own tank drivers were paid more than the workers.

Monarch issued the workers new contracts to attempt to utilise the Swedish Derogation. The workers subsequently issued claims under the AWR. Monarch argued that they were engaged under contracts that incorporated the Swedish Derogation and were not entitled to equal pay.

Regulation 10 requires that “The contract of employment was entered into before the beginning of the first assignment under that contract”. The Tribunal held that the word “assignment” did not refer to the entire period that the workers had been assigned to BP. Rather it referred to particular assignments Monarch had received from BP from time to time. It was open to employers to introduce the Swedish Derogation between assignments.

The Tribunal further found that the phrase “that contract” does not mean that a new contract must be put into place. Existing contracts can be varied to include the specific provisions of Regulation 10 provided that it is done prior to the start of the next assignment.

It should be noted that this is an Employment Tribunal decision and is not binding on any other Tribunal. However, it is the first decision that has indicated that employers can convert a standard agency contract into a Swedish Derogation one even when the worker is working at the same place in the same way, provided that appropriate arrangements are followed.

Monarch issued the workers new contracts to attempt to utilise the Swedish Derogation. The workers subsequently issued claims under the AWR. Monarch argued that they were engaged under contracts that incorporated the Swedish Derogation and were not entitled to equal pay.

Regulation 10 requires that “The contract of employment was entered into before the beginning of the first assignment under that contract”. The Tribunal held that the word “assignment” did not refer to the entire period that the workers had been assigned to BP. Rather it referred to particular assignments Monarch had received from BP from time to time. It was open to employers to introduce the Swedish Derogation between assignments.

The Tribunal further found that the phrase “that contract” does not mean that a new contract must be put into place. Existing contracts can be varied to include the specific provisions of Regulation 10 provided that it is done prior to the start of the next assignment.

It should be noted that this is an Employment Tribunal decision and is not binding on any other Tribunal. However, it is the first decision that has indicated that employers can convert a standard agency contract into a Swedish Derogation one even when the worker is working at the same place in the same way, provided that appropriate arrangements are followed.