When the Agency Workers Regulations came into force last autumn
, the focus quickly shifted to the ‘Swedish derogation’, secured by the Swedish delegation when the regulations were being discussed at European level. Simply speaking, the Swedish derogation allows a temporary work agency to directly employ a temporary worker, taking them outside of that part of the AWR that confers pay parity on a qualifying worker.
Views on Swedish derogation vary as trade unions believe it goes against the fundamental principle of the Regulations, namely to confer equal pay, but at de Poel
we know it is looked upon favourably by many temporary workers.
The bright side of Swedish derogation is that it provides temporary workers with the certainty of knowing that, at any time during their employment with the agency, if they are available for work but the agency is unable to provide them with a suitable assignment, they will be eligible for pay between assignments from their employer. Pay between assignments will never be less than minimum wage, and must be paid for an aggregate minimum of four weeks before the employing agency can terminate that worker’s contract.
The AWR, in comparison, requires temporary workers to complete a 12-week qualifying period, performing the same role during that time, with the same hirer, in order to benefit from pay parity. The Regulations cite many reasons why the qualifying clock can be “paused” or “reset”, meaning that often, many workers will fail to actually accrue the amount of time necessary to benefit.
So, far from viewing Swedish derogation as a tactic thought up by hirers to avoid paying parity to their temporary workers, it should be viewed for what it is – a genuine attempt by legislators to provide people with security and comfort during their time as temporary workers.
☛ James Hulsken is in-house counsel at de Poel