The Agency Workers (Amendment) Regulations 2019
Jurisdiction: England, Scotland, Wales
Commencement: 6th April 2019
Amends: The Agency Workers Regulations 2010 (SI 2010/93) as amended
These Regulations implement EU Directive 2008/104/EC on temporary agency work. The Directive ensures that temporary agency workers receive basic work and employment conditions, such as; working hours, overtime, breaks, pay and holidays.
These Regulations revoke regulations 10 (Permanent contracts providing for pay between assignments) and 11 (Calculating the minimum amount of pay) from The Agency Workers Regulations 2010 and remove any references to them in The Agency Workers Regulations 2019.
The Agency Workers Regulations 2010 (AWR) stipulated that after 12 weeks in the same role with the same hirer, an agency worker is entitled to the same pay, as well as the same basic terms and conditions, as a permanent employee of that hirer. Under Regulations 10 and 11 of the AWR, agency workers could waive this right if they sign a “pay between assignments” contract, also known as a “Swedish derogation” contract with the Temporary Work Agency (TWA). This means that they become a permanent employee of the employment business (TWA) and are paid between individual assignments for up to 4 weeks. Their rate of pay is determined between themselves and the TWA and does not relate to that of the organisations pay of it’s employees in the role they may be employed to fulfil. The benefit to the agency worker is that they then have guaranteed employment and remuneration whether they are working on assignment for the TWA or not. The benefit for organisations is that they pay reduced fees for labour via the TWA.
Due to abuse of this system, where contracts were being used to avoid giving agency workers their equal pay entitlements, the Swedish derogation is being revoked.
TWA will still be able to offer between assignments contracts to agency workers after revocation, but workers will not be able to opt out of equal pay entitlements after 12 weeks in the same role with the same hirer.
Businesses using the Swedish derogation contracts must issue a written statement to affected agency workers informing them of their revised entitlement in relation to pay. The change will take effect as the “pay between assignments” contracts come to an end.