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RMTnews
SWEDISH DEROGATION EXPLAINED Andrew James of Thompsons Solicitors explains a piece of European law affecting agency workers The ‘Swedish Derogation’ may sound like something only lawyers would have an interest in, but it is of increasing concern to RMT members working as agency workers. It was written into the European Union’s Temporary Agency Workers Directive to allow member states to insert a provision into their own agency worker regulations so that an agency worker directly employed by a temporary work agency is not protected by the equal treatment provision of the Directive. It is becoming a favourite opt-out for bosses wanting to legally by-pass the regulations. Inclusion of the Swedish Derogation in the Agency Worker Directive was reluctantly agreed to by the TUC, in order to get a directive at all. Up to that point, the UK government had blocked its implementation. However, there is still an argument as to whether the Agency Workers Regulation 2010 properly implements that part of the directive. Regulation 5 of the 2010 regulations gives agency workers the right to equality in relation to basic working and employment conditions, after 12 weeks. Equality must be given
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in pay, the duration of working time, night work, rest periods, rest breaks and annual leave, in relation to comparable workers. Regulation 10, which supposedly implements the “Swedish Derogation”, disapplies Regulation 5 in relation to pay, where certain conditions are met. It must be done via a permanent contract between the agency worker and a temporary work agency, which must have been entered into before the first assignment is given under that contract. The contract has to provide a statement making clear that by entering into it, the employee does not, during the contract, have any entitlement to the rights under Regulation 5 relating to pay. Terms and conditions in relation to minimum rates of pay should be included, along with a location where the agency worker may be expected to work; the expected hours of work during any assignment, the maximum number of hours they may be required to work each week, a minimum number of hours of work that may be offered to the agency worker during any assignment provided that it is at least one hour, and the nature of the work that the
agency worker may be expected to be offered. During the contract, the agency must take reasonable steps to seek suitable work for the agency worker after an assignment ends, must offer that work if it is available, and must pay a minimum amount of remuneration during that period. The contract must continue for at least four weeks, during a period in which there isn’t any assignment for the worker. Calculating the minimum amount of pay is complex, but it is based on an average of the earnings during the 12 weeks prior to the assignment coming to an end, or the period of the assignment, if less than 12 weeks. It is arguable that where somebody is already working on an assignment, for an agency, they cannot be asked to sign a new contract containing a Swedish Derogation because Regulation 10 says that the contract of employment must be entered into beforehand. But we know that some rail employers are asking members to do so. It is essential that any workers in that position seek advice from their union representative straightaway. This
is particularly important where the agency or hirer (the rail industry employer) are proposing to terminate the assignment Even if the Swedish Derogation is lawful, the other relevant terms and conditions such as duration of working time, night work, rest breaks and annual leave must be the same as comparable permanent employees of the end user. Agency workers still have the same right to access to collective facilities and amenities (e.g. catering facilities, company sports fields / sports facilities etc) from day one; and the right to be informed by the hirer of any relevant vacant post with them. Again that applies from day one. Agency workers are better off with the Agency Workers Regulations in their current form rather than none at all. However, the Swedish Derogation allows employers to get around the equal treatment provision in relation to basic pay. RMT will continue to work with the TUC to change those provisions and where members’ rights are being abused will take legal action where appropriate to help members enforce their rights under the regulations.