Q - H&G Recruitment

Report
Overview
• Introductions
• Update
• Purpose
Agency Works Regulations
• Overview & Timescales
• Options
• Preferred Options
What can we do for our clients next?
• Implementation of IT & Management systems
• Implementation of robust contracts
• Signed agreements with our clients
Questions & Discussion
AWR Compliance & Monitoring
The implementation of the Agency Workers Regulations (AWR) in October 2011
will require clients and Recruitment Agencies to work in partnership to ensure
the regulations are adhered to.
The Regulations are the most important legislation to affect employers since the
Conduct of Employment Agencies and Employment Businesses Regulations came
into force in 2003.
As members of the REC we will keep our clients abreast of all legal implications
and changes.
Presently we are evaluating the impact on our clients.
We will ensure our Planning Tools, Payroll system and Driver Passport System
will ensure you are in compliance with the new legislation.
We will also comply with any in-house systems our clients use going forward to
monitor the new legislation and indemnify our clients against any liability
associated.
Gail Radley – Operations Director
Charlotte Harper – Financial Director
Richard Fenton - Operations Manager
Marian Butterworth- Operations Manager
4 Locations
500 Temporary Workers
200 Permanent Workers
2nd Tier Agencies
Aim to Create
Savings
1 Invoice
Enhances
Relationship
&
Creates
Partnership
Enhance
Relationships &
Create
Partnerships
Reduce
Exposure
Legal
Compliance
Main Supply
Visibility and
Control
‘Day One’ Rights
1st October
Agency Workers
get two sets of
rights
•Access to collective facilities
•Information on relevant vacancies
Rights After 12 Weeks
•Pay
•Working Time
•Annual Leave
Options
Terminate
before 12
weeks
• Does not fit
with
Operational
needs or
Ethics
Companies
Directly
engage Temps
• Un-welcome
addition to
Perm
Workforce
• Reduces
flexibility
Pay parity
with
permanent
workers pay
and benefits
(not bonus)
• 12 weeks after
1st October
through
Companies
Pay-between
Assignments
• Regulation 10
“Swedish
Derogation”
for PAYE
Drivers only
True Self
Employment
• Drivers must
meet the
criteria &
adhere strictly
to our advice
Demand
Pay between
assignments
Why?
Longevity
Liability minimal
Swedish
Derogation
Workers supplied
on Pay Between
Assignments
Contracts
(Which Workers?)
The Clients and
H&G to confirm
Indemnity from H&G for losses
incurred where workers supplied
without Pay Between Assignments
Contract occur
Contractual
Commitment
Required
Workers signed to Pay Between
Assignments Contracts by 1st
September (which ones?) and
reporting to and H&G on numbers
signed
The popular consensus throughout most of our clients is the derogation route which
we have been trialing by adopting a “pay between assignments philosophy”
H&G understand that our clients will require us to manage the AWR
for them. We expect to demonstrate our knowledge of the legislation
and accept the need to invest heavily in our IT infrastructure.
Employment
Contract with
H&G
Employment
Contract
defines
suitable work
for worker
Operational
commitment
to
assignments
of 16 to 20
hours per
week
Express
waiver of
Regulation 5
pay right
Pay-between
assignments
for minimum
of 4 weeks
H&G has installed robust technology to ensure legal compliance.
•
•
•
•
•
Has bespoke client terms in place for all legally compliant options.
Has legally compliant terms in place for the supply of mobile &
general workers through a derogation model paid via PAYE.
Has legally compliant terms in place for the supply of mobile &
general workers paid via umbrella companies via derogation model.
Has legally compliant terms in place for Ltd company contractors
who have opted out of the AWR.
Has legally compliant comparator contracts for PAYE workers.
All our contracts (terms & conditions) are viewable on our AWR portal,
please go to www.H-G-Recruitment.com or email questions to [email protected] for an informed answer by our legal department.
LTD Model
Client = Control (no Direct Relationship
Client
Terms
Terms
H&G
- Terms
- LTD Co.
H&G = Control
Worker (SE / PAYE)
P/S (LTD)
Umbrella – (Paye Day)
Client
Terms
H&G
Terms (Over
arching)
Paye Day
Terms
Worker
Q
If a client pays double or treble time to its permanent employees for working a Bank Holiday after the 12 weeks, will
they have to pay agency workers for the same rate?
A
Yes, equal treatment after 12 weeks includes payment at the same pay rates. Pay includes holiday pay, shift allowances,
overtime rates. It does not include bonuses relating to company performance or long service. (Straight forward supplied
on PAYE)
Q
When preparing our contracts for drivers within the scope, can a contract be for a minimum of hours, usually 4 per day?
Can we issue part-time contracts guaranteeing a minimum of hours? Currently we guarantee a 4 day week but it is a
gentleman’s agreement. 8 hours per day, that would be a 36 hour contract? This would form the basis of the Swedish
derogation. Do you think this is appropriate or too onerous?
A
The Regulations do not change the status of agency workers. They are still workers unless you adopt the Swedish
derogation model, in which case they become employees. The Swedish derogation model (Regulation 10 of AWR)
provides that where an agency worker has a contract of employment with the agency (which meets the specific
conditions set out in Regulation 10 of the AWR), then that worker is not entitled to equal pay. However, the agency
worker will still be entitled to equal treatment in respect of working conditions (rights to know about vacancies and
rights to on site collective facilities e.g. canteen) as all other agency workers from day one.
Two key factors relating to the Swedish derogation are that where an assignment has terminated, the agency must take
reasonable steps to find suitable alternative employment for the agency worker. Where the agency cannot find suitable
alternative work, the agency must provide the agency worker at least 50% of what they were being paid in their previous
assignment, provided the amount is not less than the National Minimum Wage (£5.93). The agency must do this for a
minimum of four weeks before it can terminate the contract of employment. So, you cannot fix the contract in the way
you are suggesting – the amount you have to pay in between assignment depends on the amount they were paid in the
previous assignment. The Swedish derogation option is only suitable where you can guarantee a volume of work and
where you are prepared to accept the additional liabilities of a contract of employment (e.g. unfair dismissal and
redundancy payment rights). If there is not a large volume of work, it would be extremely expensive. (Hence the need for
continuity, regulatory and commitment)
Q
Our client wishes to know if he pays his own driver’s meal allowance will he have to pay his agency the same after 12
weeks? (If the client classes this as expenses then, no the agency worker is not entitled).
A
It is likely this will fall under the equal pay provisions and that he would have to pay it to agency workers too. We are
awaiting detailed guidance on what the Government means by ‘pay’ (Drivers on PAYE would be entitled to LV not
expenses e.g. vouchers, that can be turned into cash are seen as PAYE)
Q
If he works his driver’s annualised hours’ contract but however, only has 36 hours available, the driver gets paid 48 but
owes the client 12 hours free during a busy period. How could we safeguard that the driver would be available when it
was next busy? Can the contract stipulate that they must work on specific dates? Or that if they have to give us notice
before leaving they would pay us back from the final pay?
A
The Regulations do not affect the status of the workers so you can continue as you have been previously unless you
adopt the Swedish derogation model. In that case if you asked a driver to carry out certain work they would be
contractually bound to do so.
Q
If a client pays overtime after 12 hours basic to their own drivers, would they have to pay overtime to their agency on the
same basis?
A
Q
Yes they would (Unless under Swedish or genuinely self employed).
If a client guarantees a minimum hour day 9:- 8 to his own driver, does he have to guarantee the same to an agency
worker?
A
Yes, they have to be paid the same after 12 weeks’ work in the same role with the same hirer. (Lower minimum hour
guarantee is ok under the Swedish derogation only).
Q
If the drivers are employed by us and work at a site on a regular basis, who does the disciplinary in the event after 12
weeks?
A
Under the Swedish derogation model the agency would be the employer and responsible for discipline although you
would need input from the client. If you do not adopt the Swedish derogation model you continue as normal. (Terms of
business would insist that client participation was essential to carry out a process)
Q
A
If different clients have different procedures, do we have to have a separate contract for each one?
You will have your own disciplinary procedures with your own employee drivers under the Swedish derogation model; you
will just need to inform the drivers what the rules of each workplace are in the same way as now. (Agency has its own set
of procedures under the Swedish derogation PAYE, drivers would still be workers then they would not be subject to
discipline).
Q
When on site working under the direction and control of the client, is the welfare the client’s responsibility or the agency?
e.g. lateness
A
In the first instance, it is that of the client. However, the client may refer matters to you since the agency has the contract
with the driver and you would be responsible for disciplining if you are adopting the Swedish derogation model. (Straight
forward the client PAYE no disciplines. Swedish derogation agency discipline but clients must provide information trail).
Q
If discipline is the agency’s responsibility, what responsibility does the client have in terms of providing accurate
information?
A
None unless you make this a contractual requirement (terms of business)
Q
Many clients are talking about going down the Swedish derogation route as their preferred route. Do you have an
example contract for this?
A
No, but it would be relatively straight forward to amend an existing contract of employment to specify that the driver is
entitled to a certain minimum amount of work and pay between assignments. As for pros and cons, see response to point
2. (The REC will be publishing model contracts)
Q
A
If a worker wants to work for multiple agencies how does this work?
I am not sure whether you mean in the context of the Swedish derogation route, or just generally. Workers may work for
multiple agencies and may have contracts with each agency. If they are in the same role for 12 weeks but supplied by
different agencies they will be entitled to equal treatment after those 12 weeks. Therefore it is very important when they
start working for the agency that you check where they have worked before and for how long.
Q
A
How do notice periods work?
These are only relevant under the Swedish derogation model. You would not normally have notice periods with agency
workers and this will not change under the new legislation unless you adopt the derogation which will mean that, as set
out above, if you are unable to supply new work, then you must pay at least 50% of the pay the worker was receiving on
the previous assignment, as long as this is not less than the National Minimum Wage, for a minimum of four weeks.
Q
If all the agencies involved needed the individual on the Bank Holiday and the contract included Bank Holiday working,
how could we guarantee the worker’s services? If the worker called in sick, we would not know if he or she was working
for one of the agencies.
A
The legislation does not affect this situation unless you use the Swedish derogation model in which case you would ask
the employee to work on a specific day. Otherwise you would ask the worker to self-certify that they were sick if they
phone in sick as would be normal practice.

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