VOICES AT WORK The implications of the new Agency Work Regulations 2010 for migrant work

The Industrial Relations Context How many migrant workers are ‘agency workers’? We do not know… there are no official statistics. Anecdotal reports that there are many… and vulnerable to low wages, long hours, and unsafe working conditions kerSafety.pdf

The UK Political Context New Labour and Coalition governments seek to maintain profitability of UK employers through numerical flexibility of cheap labour: have encouraged use of agency and cheap migrant labour Have opposed controls by legislation (e.g. initially opposed Agency Work Directive 2008/104/EC) and by trade unions (e.g. UK Government response to Laval litigation – discussed shortly)

Agency Workers at Common Law Note that agency workers may not be employees or even ‘workers’: Consistent Group plc v Kalwak [2008] IRLR 505 (CA) illustrates what this meant for Polish workers… Cf. Autoclenz v Belcher [2011] UKSC 41 Problem of access to protection from dismissal or discrimination on grounds of trade union membership (see esp. s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 – TULRCA)

Agency Worker Regulations 2010 The statutory definition of an ‘agency worker’ – Reg. 3 Still not a worker Reg. 6 – Limited terms and conditions to which agency workers can claim equal access after 12 weeks Reg. 12 – Narrow conception of ‘access to collective facilities or amenities’ which does not seem to allow information and consultation rights let alone collective bargaining (Reg. 12) Reg. 13 – Note very limited terms of ‘access to employment’. A limit on agency workers’ collective agency, not only in the form of collective bargaining, but also even access to representation on works councils and staff councils for information and consultation

A Link to Posted Workers and Limitations Placed on their Rights? See C-341/05 Laval – judgment of the European Court of Justice (as it then was – now CJEU) Swedish unions took industrial action aimed at securing a collective agreement for posted Latvian workers - deemed illegal as in violation of a Latvian service provider’s right to free movement of services… too uncertain in terms of calculating wages and other costs and therefore too onerous for an employer! An employer can consent to a collective agreement but cannot be placed under pressure to accept… Issue of validity of collective agreement in the home country? In that case signed after negotiations began with Swedish unions commenced. Problems of representation for migrant (and agency) workers in the host state, when agreement only signed with a union based at home? Posted agency workers can claim benefits of a collective agreement now – but only after 12 weeks and if applies to a ‘comparator’?

ECHR Rights – Freedom of Association The TAWD and PWD seem to stand in violation of findings of the European Court of Human Rights which indicate that a right to collective bargaining and a right to strike are implicit in Article 11 protection of ‘freedom of association’ – see Application no /97 Demir and Baykara v Turkey, Grand Chamber Judgment of ; and Application No /01, Enerji Yapi-Yol Sen v. Turkey, Judgment of

Migrant Agency Workers as Third Country Nationals Council Directive 2004/109/EC – third country nationals who are long term residents – Art. 11 ‘equal treatment’ clause includes ‘freedom of association’. Council Directive 2005/71/EC – third country researchers – Art. 12 – ‘equal treatment’ clause does not include freedom of association Council Directive 2009/50/EC – third country nationals who are ‘highly skilled workers’ (Blue card) – Art. 14 ‘equal treatment’ clause includes ‘freedom of association… and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security’ Note proposed Directives for Seasonal Workers and Intra-Corporate Transfer contain the same wording re ‘freedom of association’… If agency workers seems obvious will be able to claim these…

A Case for Consistency? These developments regarding migrant labour from third countries highlight the inadequacies of the Temporary Agency Work Directive and UK Agency Worker Regulations. They also raise the question whether current treatment of collective labour rights of ‘posted’ migrant workers from within the EU can be justified and sustained, especially post EU accession to the European Convention on Human Rights. It may be that time is ripe for a human rights based challenge to enable this marginalised, but growing group of migrant agency workers across the EU, to assert their entitlement to voice at work.