The pros and cons of agency drivers
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by John Darker AMBIM PRIVATE employment agencies have been so much a part of the labour market in the past decade that it is not surprising that they have made inroads into road haulage. From the employers' standpoint, it is just as logical to hire labour to cover peak traffic demands as to hire a trailer or prime mover. There is no point in any business carrying an overhead, represented by equipment or staff, throughout the year if the business — as in so much of road haulage — is cyclical or seasonal Of course, there is no firm reason why employers should look to agencies to cover peak labour demands. If it makes sense for haulage firms to make reciprocal arrangements on the traffic side there is no reason why seasonal driving needs should not be met by mutual co-operation between two or more hauliers. Such flexibility would be, or should be, normal in a large diversified group, provided the type of driving skills needed is compatible. It is rare, I think, for independent hauliers to help each other out on a regular, seasonal, basis with drivers.
Controlling the Lump
The Government is shortly to introduce sweeping measures to control the Lump in the construction industries. It is possible that there will be side effects from the legislation on employment agencies in general, and driver agencies in particular, for it is well known that road transport trade unions have little time for agencies, and some judicious lobbying in the next few weeks could prove rewarding both to unions and employers' associations in road transport.
It is a measure of interest in the subject that the Volvo Drivers Mirror has recently published a full-page summary of the current state of the debate on agency drivers and the piece has been re-published in Wheels, the URTU journal. The salient points bear repeating here.
Mr E. W. Russell, RHA secretary general, stressed his fear that agencies could attain a dominant position in road haulage, as they had in secretarial and clerical employment. But there was some hope that the RHA would be able to mount a rearguard action to stem the spread of agency penetration in road haulage.
Draft regulations issued under the Employment Agencies Act, 1973 contain three paragraphs of special interest. An agency must satisfy itself that the employee it introduces to a client is legally qualified to do the work required; the contract between the agency and the employer should be in writing; and the agency should maintain records of the monies paid and received on behalf of the client.
Demanding the facts
The first point would apply to drivers' hours limitations and to the need to hold the appropriate driving licence. The RHA has urged the Department of Employment to require agencies to reveal details of pay rates, income tax and National insurance deductions. The Association believes that all hauliers using agency drivers should demand this information in any event, whether or not the regulations ultimately require the agencies to disclose this. Mr Russell's understanding is that all employers should be able to supply Government departments with employees' pay, tax and NI contributions and that this requirement extends to temporary employees, whom they employ.
The RHA would prefer its members not to employ agency drivers but, if they must, members are warned of the strong probability that contracts of insurance covering the use of vehicles will be jeopardized; there could be serious vehicle security risks; it is unfair that agencies, whose drivers are likely to have been trained by members in scope to the RTITB, bear no training costs; and the more agency drivers are employed in road haulage the greater the risk, before long, that the agencies will control a substantial part of the manpower available to the road haulage industry. The crux of the argument between road haulage employers and the agencies lies in the definition of the employer. In a recent test case in the Divisional Court the Eastern Licensing Authority's arguments that liability to deduct and account for the driver's National Insurance contributions and income tax payments "were more crucial and relevant in deciding whether a true employer/employee relationship existed between the haulier and the agency driver" did not avail. In the lower court, magistrates had ruled that a driver supplied by an agency did become an employee of the haulier concerned, hence the haulier was responsible for the driver, and not the agency paying the driver's wages.
The Federation of Personnel Services of Great Britain Ltd, representing most • of the leading agencies supplying drivers, will have been delighted with the Divisional Court's decision. They say — I quote Federation general secretary, Mr Donald Cropper — "As far as drivers supplied through agencies are concerned, in order to make sure that there is full compliance with local obligations, including those set out by statute, it is essential that the status of the driver is quite clearly shown to be that of the employee of the operator."
Who is the boss?
There is no lack of case law to establish that the final consideration as to who is the employer "is to Cask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged." This ruling from Lord Porter (in the Mersey Docks and Harbour Board case) reflects more common sense than the pedantic arguments about pay and tax deductions, though the RHA cannot be criticized for pushing another legalistic view.
Mr Cropper says that if the concept of the operator being the employer is followed through, "and most agencies make sure this is clearly the case" there will be no problems regarding vehicle and third party insurance.
The agencies now accept that a rigid "Code of Ethics" is necessary to ensure that the driver, the client and the agency are each fully aware of contractual and legal liabilities. The sooner such a Code is generally agreed and published, the better for all concerned.
The Federation representing the agencies argues that temporary workers are used to fill temporary vacancies and that without the use of temporary workers industry would be the sufferer. They claim that over 70 per cent of temporary workers are genuinely in this category, i.e. their personal circumstances prevent their taking a permanent job.
The Federation claims that probably less than three per cent of drivers are employed through agencies and that Mr Russell's fears of greater inroads being made in road haulage are "quite unrealistic".
Trade union attitudes to the use of agency drivers are well known. They are "agin them". Mr Jackson Moore, general secretary of URTU, hints in his contribution that agency drivers were being paid much more than average before the recent Scottish drivers' strike. Why, he asks, should not "the employed professional be paid at least as much as the company is prepared to pay the leeches, the agency labour gang."
Mr Moore, in emotive language, talks of "these agency scabs floating in and out of a company" with little regard for the trucks or the products. "No agency labour" is the policy of URTU, says Mr Moore, in line with TUC policy. (What line would the TUC follow if agency drivers were all members of an affiliated trade union?) Older readers will recall days when there were not thousands of able bodied men around prepared to classify themselves as "temporaries". Many hauliers I know have lost good permanent men to the agencies. But can road haulage swim against the trend of the times?