AWR Code revisions
The Agency Workers Regulations (AWR) exists to help protect vulnerable workers and FCSA wholeheartedly supports this principle. FCSA believe that the spirit of the legislation to protect those that could be exploited has to be respected and understood. Workers that FCSA members support and employ are typically in the professional sphere and therefore some of the regulations need to be placed in context of this. Both Matched Permanent Pay (MPP) and Swedish Derogation (SD) models are covered by the FCSA code of conduct review process in alignment with guidance and law. There has been much discussion around AWR models and FCSA have taken the necessary time and advice to arrive at some key principles.
Swedish Derogation is not a loophole that avoids a person being provided with the rights conferred to them under the terms of the regulations. The ability to employ a temporary worker and provide them with pay between assignments (PBA) was subject to extensive consultation and can provide significant benefits to temporary workers.
The regulations outline what terms need to be included within a SD employment contract and how any PBA should be calculated. However, as with all of the regulations, they are currently untested from a legal standpoint.
As such, any person offering any type of AWR employment solution is basing their solution on the regulations, guidance and any advice taken. Until case law develops to provide practical application to the terms of the regulation it would be impossible for any person or firm to provide any certainty that the solution they have adopted is “compliant”.
As a consequence, FCSA will support members offering either a match per pay or a Swedish derogation solution as long as the terms of the solution meet the requirements of the regulations. FCSA will continue to keep all solution under review as case law develops. FCSA will move swiftly to change their code to comply will evolving case law to ensure that all solutions approved by FCSA are of the highest standards.