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Agencies of change

3rd December 2009
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Which of the following most accurately describes the problem?

From 2011 agency drivers will win new rights from the EU. In the meantime, hauliers booking drivers for Christmas should understand the current rules.

Words: Peter Woodhouse / Images: Graham Richardson This is the time of year when transport businesses gear up for the Christmas rush. Operators will be hoping that there will actually be something to gear up for. Those lucky enough to be expecting an increase in trade may need to rely on agency workers to help them out. So what are the pitfalls in using agency workers and what will change under the Temporary Agency Workers Directive, coming into force in 2011?

What is an agency worker?

An agency worker is someone who goes to an employment business (agency) and signs on to perform contracts that the employment business has with the end-user client. Such contracts may involve many different people, ranging from a student looking for a few days' or weeks' work in their summer holidays, to someone who makes a lifestyle choice to work in this way.

So, although agency workers are often called "temps': they often cannot be considered temporary workers.

Employee or worker?

The rights of someone working through an agency depend primarily upon whether they are an "employee" or a "worker" as defined by the legislation.The very important rights to claim unfair dismissal or a redundancy payment depend upon someone being an employee. Other rights, such as the right to paid holiday and the national minimum wage, depend upon simply being a "worker'.'

Due to the substantial difference in rights, courts are frequently asked to determine whether someone is a worker or an employee, whether of the agency or the end user.

It is important to remember that the law uses words in specific ways, sometimes regardless of the common meaning attached to them.The word "worker" is an example. Under the law, whether an employee is a worker or an employee depends on a variety of factors, important ones being whether the individual has an obligation to perform the work personally (as opposed to being able to give it to someone else) and whether the organisation providing the work has an obligation to offer it in any time or manner. Courts and tribunals will also look at what control the operator has over the individual — the greater the level of control, the more likely the individual is to be an employee.

Agency and operator relationships

The relationship between an employment agency and its clients is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003.These rules include requiring employment agencies to ensure that workers are properly matched to their client and also provide that employment businesses must enter into written contracts setting out the details of fees and what happens if an agency worker is unsatisfactory

What should the operator look out for?

The first thing that the operator needs to ensure is that its arrangements with the agency comply with the relevant regulations. The agency ought to provide written details of the contract and the operator should read and check those carefully. While the agency has a duty to ensure the suitability of its candidates, the operators should not simply rely upon or trust the agency to do its job. After all, if the agency driver does something wrong, it is the operator's good repute that is at risk.

The operator should ensure that the agency driver conies with, and presents their driving licence for checking, before going anywhere near the vehicle. The operator should take a copy of the licence and put it on file. They should also check that the driver carries any other qualifications that they are required by law to hold.

The operator should ensure, by way of a practical test, that the driver can actually drive the vehicle. This might involve sending the driver out with an experienced driver or dedicated trainer if the operator has such resources. The driver should be given any relevant induction document, including information regarding the company's first-use defect system, and also information regarding the drivers' hours and tachograph rules. Unfortunately, many drivers will simply state that they know the relevant regulations when in fact they either never have or have forgotten them. Ideally, drivers should sit a short test (perhaps 10 or 20 questions) before being let loose on the vehicle.

The operator should also ensure that it has arrange

ments to collect the tachograph discs from the driver. Often, the driver, having retained the requisite discs, then returns them to the agency and the operator never sees them.This causes a problem when VOSA conies to visit. Sometimes, since they have not been checking the discs, operators have been committing offences without even knowing about them. Some operators have arrangements with their agency suppliers to photocopy and fax copies of charts pending the arrival of the originals.

Dealing with an employment business

An employment agency is likely to have standard terms and conditions of business.

In the current economic climate, the agency is likely to be very keen to place its workers and may well agree a variation on their standard terms and conditions. Operators should be aware of such possibilities. N

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Organisations: An, European Union

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