Food industry seeks changes to agency worker law

The food industry, which relies heavily on agency workers, could face a hefty bill and an administrative headache when the EU Temporary Workers Directive comes into force in autumn 2011 unless the UK government tweaks the version of the legislation in UK statute books, Food and Drink Federation (FDF) HR director Angela Coleshill told FoodManufacture.co.uk.

Under the Directive, which was laid before Parliament in the spring and will come into force in October 2011, agency staff that have been working for more than 12 consecutive weeks at a company will be entitled to the same pay, overtime and breaks as directly employed staff doing the same job.

They must also have equal access to intranets, internal job postings, canteens, transport and other benefits enjoyed by permanent staff, creating a lot of red tape, said Coleshill.

“We understand that the new government has not yet got to the point where it is looking at the finer detail of this legislation but we are hopeful that it will be open-minded to representations from industry, as this is going to have a wholesale impact​ [on firms employing agency workers]."​

Lobbying points for the FDF include a reduction in the 'break' period (the time allowed to pass between 12-week blocks of work) from six weeks to two weeks, a narrower definition of pay, a fixed period of holiday entitlement and more clarity on the definition of a comparator (the permanent staff member that is being used as an equivalent when calculating pay and conditions for a temporary worker), said Coleshill.

She added: “We think ‘pay’ should be limited to basic pay; our members have strong concerns about including bonuses in the definition. Many employers have bonus arrangements made up of various elements which would be extremely complicated to administer for agency workers.”​

The CBI (Confederation of British Industry) has also been lobbying hard to persuade the new coalition government to tweak the legislation, and is understood to be preparing to make an announcement on this front on Monday.

Administrative nightmare​

Many firms were just as concerned about the extra paperwork as they were about pay rates, said Eversheds partner Owen Warnock.

“Lobbying efforts on this have definitely stepped up a gear in recent weeks although the room for manoeuvre when it comes to changes is fairly limited.​

“Some things that can be tweaked, however, are the length of the linking period between the 12-weeks of employment.​There are also a number of changes which would reduce the administrative burden and make it less likely that companies would break the rules accidentally. ​

"It's also possible that definition of pay could be narrowed, but that is more controversial.”​

Given that the Tories had made much of their concerns about being dictated to by Europe on areas such as employment law, there could be some political capital for the new government in attempting to remove some of the ‘gold-plating’ from this particular piece of legislation, added Warnock.

“But it’s also a question of timing. There is plenty of time​ [before October 2011] to make a change, and it might be something they want to announce at a time when it will best enhance their reputation for protecting the competitiveness of the British economy.”​

Employers could have to pay up to £5,000 to an agency worker if an employment tribunal finds they have breached the legislation.