Agency workers represent a disposable workforce with fewer rights than other workers. They might be working for BT or Tesco, for a local authority or a big manufacturer like Jaguar Land Rover, but if they are engaged through an agency that could end tomorrow. In the current recession agency workers have often been the first to lose their jobs, even though they may have been doing the same job for the same ‘employer’ for years. But the recession doesn’t mean the end for agency working.

One of the biggest agencies, Manpower, has predicted that as businesses adjust and reassess their workforce needs, we are more likely to see employers hire temporary staff over permanent staff until the economic outlook stabilises: “The lure of a temporary workforce is that it is highly flexible and in Manpower’s case, offers minimal employer liability”, an agency statement said:

The Greater Manchester Advice Service has plenty of experience dealing with agency workers who contact its help lines. The main problem reported by the security guards, drivers, cleaners, office staff and other temps it hears from is the complete insecurity of this kind of work, and also the difficulty if they complain: “As soon as they raise an issue with their ‘employer’ they know it is very unlikely that they’ll be taken on again”, advice workers say.

Although agency workers (and those working for “gangmasters”) have some legal protections, unless they are deemed to be employees of the end-user there is currently nothing in law to prevent them being paid less than direct employees working alongside them doing the same jobs. Unions have ample evidence of agency workers fulfilling responsible roles for prestigious employers, working for year after year without a pay rise, on rates well below those of directly employed staff.

Problems like this have been seen at Salford City Council where cleansing and refuse workers went on strike over it in 2007; at BT where the communications union (CWU) has been campaigning on the issue up and down the country; and on Virgin Trains where (in 2007) the RMT rail union highlighted the case of on-train catering staff paid £6 an hour when the hourly rate for a customer service assistant at the time was £8.82 and the rate for a chef was £9.98. There were disparities too in holiday entitlement, sick pay, staff travel and pensions.

Employees on fixed-term contracts (also known as temporary employees) are entitled to equivalent rights and treatment as permanent employees under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (FTER). But these regulations apply only to employees, agency workers are specifically excluded. Agency workers in the UK also suffer from uncertainty over their employment status which can significantly affect their legal rights.

The Greater Manchester Advice Service says that agency workers who contact its help lines “feel” like employees of the end user and are often surprised to be told that they have fewer rights than other workers, no right to redundancy pay, for example, after years with the same “employer”. Even when they have statutory rights, like the right to paid holiday, they may still be ripped off: Imagine being told, in the week running up to Christmas, that there is a two-week shut down but you’re not going to be paid because as an agency worker holiday pay has “already been included” in your hourly rate.

New rights are on the horizon for agency workers. The government says it will legislate to implement the European Temporary Agency Workers Directive (see below) during the current parliamentary session. Although the new law won’t necessarily end uncertainty about employment status it will allow agency workers to compare themselves with the end user’s directly-employed staff.

Union role

Until we know the detail of the new equal treatment law, and when it will be effective from, it is impossible to say how much difference it will actually make. And, as with the National Minimum Wage and Working Time Regulations, there will still be employers who try to evade their legal responsibilities. Stronger enforcement arrangements will be needed but trade unions have a significant role to play in improving things for agency workers, and trying to get them into permanent jobs.

Agency workers can join a trade union themselves, and one of the biggest employment agencies (Manpower) recommends that they should consider doing so. Unions can represent and be recognised to bargain for agency workers, taking up health and safety issues and tackle low pay rates and unequal terms and conditions of service. They can work towards more secure forms of employment for agency staff, with the help of employers who are prepared to take an inclusive view of the contribution agency workers make to their business.

Trade unions can:

• Help improve the inclusion and representation of agency workers within the wider workforce
• Deal with disciplinary issues and grievances involving agency workers
• Tackle health and safety issues affecting agency workers
• Ensure that minimum terms and conditions apply (pay rates, holiday, sick pay)
• Negotiate over when and where agency workers are used
• Secure permanent contracts for agency staff and secure the transfer of work to directly-employed staff

Good practice

This report looks at six organisations in the North West where unions have helped in this way: IT firm Fujitsu in Manchester; the Manpower employment agency which supplies staff for BT’s Warrington call centre; Bovis Lend Lease which is building a huge new hospital in Manchester; Tesco which uses agency workers in its distribution depots (like the ones in Middlewich); Salford City Council; and the British Cattle Movement Service which is a major employer in Workington, Cumbria.

Representation, recognition, health and safety

One of the first things a union will do when it negotiates recognition with an employer is to agree fair grievance and disciplinary procedures. Summary dismissal without advance notice for minor offences shouldn’t be acceptable, for agency workers or anyone else.

Unions have succeeded in securing recognition agreements directly with employment agencies supplying staff to private sector companies like BT and Tesco, as well as at public sector organisations like the British Cattle Movement Service. But with the ‘end user’ organisation having as much (if not more) say about what happens to agency workers, union agreements with these end-users (like the collectively agreed disciplinary procedure covering the Bovis Manchester Joint Hospitals construction project, or the union agreement with Fujitsu Manchester) can also make a real difference.

Agency workers themselves can play a role in the workplace as union reps or officers, improving things for agency and directly-employed staff alike. Employment agency Manpower provides “facility time” for union reps while agency workers can get involved in health and safety activity at the Bovis site under its Incident and Injury Free programme. Ensuring that agency workers get proper rest breaks is the sort of thing that can make a real difference.

Pay, terms and conditions

Unless they are deemed to be employees of the end-user there is nothing in law yet to prevent agency workers earning considerably less than the directly-employed people working alongside them. This in turn can under-cut pay levels for permanent employees, particularly as the recession gets worse, fuelling a “race to the bottom”. The Communication Workers Union (CWU) has made this a high profile issue with its Power Up for Agency Pay campaign, targeted at BT where some agency workers have gone without pay rises for years.

Minimum pay levels for everyone working at the Bovis Lend Lease site, including agency workers, are well above the legal minimum thanks to the unions’ national agreement in the construction industry and Bovis’ insistence that it applies to contractors and sub-contractors alike. And union successes at Salford City Council and the British Cattle Movement Service secured higher paying permanent and direct fixed-term contract jobs in place of lower-paying agency assignments.

Being recognised has also given unions the opportunity to negotiate over and be consulted on a range of important terms and conditions affecting agency workers, from sickness absence and attendance to holidays, travel and subsistence payments, and probationary periods.

Security and inclusion

Employment agencies have a role to play in the labour market but employers sometimes use agency staff for extended periods, rather than appoint permanent staff. Salford City Council’s recycling service was, prior to the 2007 industrial dispute, provided almost entirely by agency workers. Press exposure of Dickensian arrangements requiring agency workers to present themselves early in the morning for the chance of being picked out for work helped the union secure change.

In some organisations agency workers can make up more than half of the workforce. While working to improve conditions for agency staff, unions have tried and some cases succeeded at getting North West employers to face up to their responsibilities and move to more permanent arrangements. This can include agreeing that agency use is restricted to genuine short-term need.

Practical steps towards greater security can include training, to help agency workers secure permanent positions; English-language training (where agencies make use of migrant workers); and training for directly-employed staff to reduce their employer’s reliance on agencies for specific skills.

Security and employment rights can depend on an individual’s employment and tax status. This is a particular problem in the construction industry where the problem of “bogus” self-employment is widespread. Industrial relations practices at the Bovis Joint Hospitals site in Manchester, with union support, require contractors to ensure that only those entitled to be considered self-employed are employed and paid as such: By challenging bogus self-employment among agency workers, unions can help them benefit from stronger employment rights, as workers or employees.

Finally, while employers may try to keep agency workers at “arm’s length”, unions can work for a more inclusive approach: from the opportunity for agency staff to raise problems directly with the host employer, to their involvement in sporting and other activities.

LRD 30/01/09

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