I’ve been asked to put a question on here by a few agency drivers where I work.
They have all worked the 12 weeks since the 1st of Oct for our company but their agencies seem to be fobbing them off with all manner of excuses why they shouldn’t be paying them the same rate as us now that they have completed the 3 months
Anyone know who is responsible for policing this or who they can contact for legal advice on the matter
Contact The Swedish Derogation, that will help. 
Coffeeholic:
Contact The Swedish Derogation, that will help.
Thats what one of them mentioned but he didn’t seem to know what it was and It’s the first I’ve heard of it. I’ve just googled it and see it is a loophole, what a bloody waste of time that legislation was
The agency lads got a promise of 1st tier, 50p an hour increase, if they signed up to the agreement, 75% have.The other 25% have not signed and have a £3.20 per hour pay rise, making £12.20 an hour.They are classed as agency 2nd tier.
Its early days yet, and we go quiet at the start of the year, just have to wait and see if the 2nd tier miss out on any work, and money ?
Rooster:
The agency lads got a promise of 1st tier, 50p an hour increase, if they signed up to the agreement, 75% have.The other 25% have not signed and have a £3.20 per hour pay rise, making £12.20 an hour.They are classed as agency 2nd tier.Its early days yet, and we go quiet at the start of the year, just have to wait and see if the 2nd tier miss out on any work, and money ?
Similar at my agency. We are not classed as 1st or second tier though. Fortunately!
There were those that signed up as employed for a guaranteed week, and those like myself who went self employed.
Ive gone from £8 p/h to £11p/h. I dont get holiday pay though, but hey! 40hrs at an extra £3 is £120 a week which is nice. I can also put things against tax as well, so Im well pleased with the way its worked out for me.
I am a bit concerned as to how the next few quiet weeks will pan out. Obviously the contracted drivers will have to get their hours in, we`ll see what happens, it might be ok.
My agencys always been good with me and Ive tried to be good with them. The lippy sods who can`t conduct themselves will have the most to worry about when the work gets scarce.
Sorry, way off topic there!!! I think its up to an individual to bring a case against a company to get the law implemented. As far as Im aware nobodys tested the law in court yet and that is what a lot of agencies are waiting for.
The agency are on £9.50 days, £10 nights, £11.50 Sats, £14 Suns/BH’s 1st tier, 2nd tier get £12.20 Mon/Sat, & £14 Sun/BH’s, early days yet.
The 1st tier are going to wait and see if the 2nd tier get the same hours, if that happens they will sign off.
Big Roy:
Coffeeholic:
Contact The Swedish Derogation, that will help.Thats what one of them mentioned but he didn’t seem to know what it was and It’s the first I’ve heard of it. I’ve just googled it and see it is a loophole, what a bloody waste of time that legislation was
Its not quite a loophole. If an agency uses the Swedish Derogation then when there’s a week with no work on, the agency have to still pay them a minimum set number of hours.
The trouble is the agencies are playing on the fact agency drivers are too stupid to go find out the regs.
Not quite right there conor. At least.with my agency.
The contracted guys are on a guaranteed week…but averaged out over, i think, 12 or so weeks. So they could be stood down for a week.
Thanks for the info guys, I will get back to the lads tomorrow, so as I understand it they must have signed a new contract 3 months ago and I got the impression that this wasn’t the case, but I will speak to them
Just one more thing, does anyone know how The Swedish Derogation affects limited company drivers?
The Swedish Derogation is being mentioned a lot by Umbrella Companies. What does it mean?
When the Agency Workers Directive was negotiated at EU level a Swedish delegation negotiated a clause that said:
Where ‘agency workers’ are employed on a permanent contract by their Temporary Work Agency (Recruitment Agency or Umbrella Company) and receive pay in-between assignments, the AWR rights to equal pay for an agency worker no longer exists (so the client/Employer does not have to ensure the Contractor/Agency Worker receives equal pay to a comparable employee).
For the Swedish Derogation Model (SDM) to apply correctly however:
The permanent contract of employment with the TWA must be in place before the start of the agency workers first assignment and the employment must be genuine. This means that an agency worker working through an Agency at a client/Employer on a standard contract of services for agency workers can have this contract terminated one day and a new assignment with a permanent contract of employment with the same Agency (working at the same client/Employer) can commence the next day.
A TWA using the SDM will have a legal obligation to pay agency workers between assignments a minimum amount for no less than 4 calendar weeks. The minimum amount that can be paid is 50% of the workers’ average basic pay for the last 12 weeks (or at least the National Minimum Wage).
The TWA must take reasonable steps to seek suitable further employment for the worker when their assignment ends and make sure it is offered to the worker.
However, this does mean your employment can be terminated by the TWA after 4 weeks, if there is no further work. And of course the SDM only applies to Pay — it does not remove the equal treatment rights to working hours, holidays etc. So, your Client is still liable for ensuring you receive these after 12 weeks in the new assignment (if you are in scope).
It is our understanding that Umbrella Companies are currently considering the wording of the permanent contracts they will use for the Swedish Derogation Model — in relation to how many hours per week they need to employ agency workers to be compliant with the Regulations. The Regulations say that a ‘zero hour’ contract is not allowable but the recent guidance, although referring to contracts of greater than one hour, does not confirm the minimum amount of hours the contract should be for. It does warn TWAs against acting outside the spirit of AWR “by structuring contracts that deprive agency workers of the protection provided by pay between assignments”. What will happen in practice we obviously don’t know!
Thanks Santa