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AGENCY AND MIGRANT WORKERS BY SONIA MCKAY


Sonia McKay is Professor of European Socio-Legal Studies at the Working Lives Research Insitute, London Metropolitan University where she heads a number of research projects, mainly focusing on migration. She holds a law degree from Queens University, Belfast and a Ph.D in employment law from Wolfson College, Cambridge. Sonia joined the Working Lives Research Institute in 2004 having previously worked for the Labour Research Department (LRD), the independent trade union-based research organisation, where she held the post of employment law researcher from 1983. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.

ISBN 978 1 906703 05 9 July 2009 published by the Institute of Employment Rights The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD e-mail office@ier.org.uk www.ier.org.uk print and layout by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others


agency and migrant workers by Sonia McKay


contents

Executive Summary

1

Introduction

4

1. The growth of migrant agency labour

9

The jobs that migrant agency workers do

13

2. The limitations of the law Implementing the Directive

17

The mechanisms of enforcement

21

Agency workers and employment status

25

agency and migrant workers

3. Why employers choose migrant agency labour

ii

15

28

Agency labour – costs and jobs

30

Agency employment avoids immigration law

33

Agency labour can challenge worker solidarity

34

4. Agencies as promoters of migration

37


5. The terms and conditions of agency migrant workers

41

Agency workers’ pay

42

Women and agency work

46

Promoting health and safety

46

Conclusion

53

Endnotes

56

IER Publications

60

agency and migrant workers

6. Union support for migrant agency workers 48

iii


iv

agency and migrant workers


executive summary

Agency working is high on the political agenda. A draft European directive means that the UK will have to introduce a new law to give a right to no less favourable treatment for agency workers, compared to directly employed workers. Agency work is also the subject of political debate, due to the poor terms and conditions that many agency workers experience, particularly those in low paying jobs and significantly where they are migrant workers. For this reason a publication on agency work and migrants is timely. The main issues covered here include:

„ Even though the law on agency working was strengthened in 2007 and further legislation is to be introduced to comply with a European Directive on agency work, the employment rights of agency workers are not well protected. Agency migrant workers in particular often have to make large payments to employment agencies to get work (even though technically this is unlawful in the UK) and also get charged exorbitantly high amounts for accommodation and transport to and from work.

agency and migrant workers

„ There has been a significant growth in agency working over the last decade, with the data showing a 60 per cent increase between 1997 and 2007. Agency workers are more likely to be doing short, repetitive tasks, working in clerical, semi-skilled and unskilled jobs. They are also more likely to be young (under the age of 25), working in manufacturing or in transport, slightly more likely to be male than female and more likely to be recently arrived migrant workers.

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„ Even when all the new laws are in force UK agency workers will have a lower level of protection than will apply to agency workers in most other EU States and the majority of agency workers will be entirely excluded from its protection. It is not just that the law is limited in its coverage; the methods of enforcement for workers trying to exercise their employment rights are also weak. The enforcement authorities are small and unable to adequately deal with the number of employment agencies now operating in the UK – more than 16,000 of them. This publication argues for better enforcement, in particular by extending the powers of the Gangmaster Licensing Authority (GLA) to deal with employment agencies operating beyond the narrow range of industries currently covered by the GLA. „ The publication maintains that a particular problem for agency workers is in the way that the courts have interpreted their legal status, leaving many agency workers as neither the employee of the end user employer nor of the agency itself. This means that when they try to enforce employment rights they find that there is no ‘employer’ against whom they can bring a case.

agency and migrant workers

„ Their weak legal position is what makes agency workers particularly attractive to employers. While the argument often advanced by employers is that they only use agency workers to deal with peaks in production or to cover when directly employed staff are away, the reality is that agency work is a permanent feature of some employment environments. Agency workers cost employers less, not just because they can use them as and when they wish, but also because they can avoid the ‘on costs’ associated with permanent workers, like pensions, sick pay, holidays and indeed the cost of supervision and Human Resources. In relation to migrant workers, some employers choose to hire through agencies simply because it means that they do not then have to deal with immigration laws.

2

„ Agency workers can be used to challenge worker solidarity. Not just can they be used in the run up to industrial action, as the employer prepares to circumvent strike action, but they can also be used to divide up workforces, between permanent workers with employment rights and agency workers without rights. This means that workers do not identify their common interests.


„ Employment agencies do more than just supply labour; in recent years they have played an important role in encouraging migration. Agencies operating in the Philippines and in Southern Africa entice and organise professional care workers to come to work in the UK, promising good jobs in the health sector, only for many workers to find that the jobs on offer are in the care sector in unqualified care posts. Similarly agencies operating in Central and Eastern Europe have organised the travel of migrant workers to the UK promising high earning jobs in return but then charging them high fees for travel and accommodation, fees that generally are much higher than the actual cost of the service and are a smokescreen for job finding itself, a charge that employment agencies in the UK are not allowed to levy. „ Of course for some workers agency labour is a ‘choice’. Many migrant workers report that, if looking for a job right away, the agencies are the best ways to get work. Where you have workers who need to earn, who have no access to any kind of welfare benefit or support, then going to an agency is the way to earn some money quickly, even if the earnings are low and the work is hard and the hours are long.

agency and migrant workers

„ It is their very vulnerability that makes agency workers an important focus of trade union organising. As the publication notes, there are excellent examples of trade unions fighting for agency workers’ rights as well as examples of directly employed and agency workers making common cause. This is the way that the abuses of agency labour can be best tackled. If workers get together to fight in a common cause, the ‘advantages’ that employers see in hiring them through agencies, could quickly disappear, leaving agency work to cover work that it genuinely temporary in its nature and which is a real choice and not a forced choice for workers.

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WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation. The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Jim Mortimer, Tess Gill and the general secretaries of Britain’s largest trade unions. The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively. Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees. If you are interested in subscribing or would like to know more about the Institute, then contact us at The People’s Centre, 50-54 Mount Pleasant,Liverpool, L3 5SD or email us at office@ier.org.uk. Or visit our website at www. ier.org.uk

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