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APSCo raises concerns

APSCo raises concerns about impact of draft Agency Workers Directive on recruiters

APSCo submission on draft regulations
The draft Agency Workers Directive (AWD) regulations could impose significant and unfair costs on recruiters if they are implemented in their current form, according to the Association of Professional Staffing Companies (APSCo) in its response to the consultation which closed 11 December 2009.

APSCo highlighted several problem areas in its submission on the draft Regulations, which its members are concerned could damage their businesses. These are:

Scope of the Regulations While welcoming the intention to exclude limited company contractors, APSCo says that in practice it will be very difficult and costly for recruiters to assess whether limited company contractors are self-employed, and therefore excluded from the Regulations, or not. This is a subjective test, which recruiters are not equipped to makeAPSCo has therefore produced guidance to help recruiters determine whether the Regulations apply to limited company contractors or not. It has asked the Government to take compliance with this guidance into account when assessing any claims under the Regulations APSCo also says that the wholesale inclusion of umbrella company contractors within the scope of the Regulations fails to recognise that most umbrella company contractors are highly paid professionals who are unlikely to benefit from enhanced employment rightsProtection of pregnant women and new mothers APSCo is extremely concerned that the draft Regulations will give temporary workers who are pregnant or new mothers more rights than equivalent permanent employees. This will impose significant costs on staffing companiesThe Regulations propose that staffing companies will be responsible for finding pregnant women and new mothers who cannot work for health and safety reasons alternative employment or, if this is not possible, pay the temporary worker for any period of the assignment when she cannot work due to a health and safety risk
Temp to perm fees APSCo does not agree that it is necessary to specify a reasonable level of recompense in relation to temp to perm fees as the Regulations propose. APSCo says that temp to perm fees are a matter of commercial agreement between recruiters and their clients and that the market already dictates what is reasonable - particularly as end user clients tend to have greater bargaining power than recruitersLiability in relation to an equal treatment claim APSCo is proposing an amendment to the draft Regulations to make any indemnity requested by a hirer from a staffing company in respect of any liability under the Regulations unlawfulIf hirers are allowed to push the cost of complying with the Regulations onto recruiters by getting recruiters to indemnify them in respect of any losses, costs or awards made in connection with the Regulations, then vulnerable workers would be no better off and the costs to the recruitment sector could be highly damaging
Ann Swain, Chief Executive of APSCo, comments: The Government has been very receptive to our concerns so far. We welcome the delayed implementation of the Directive until October 2011, but there are still a number of aspects to the draft Regulations which could impose significant costs on recruiters and which we will continue to press the Government to amend.


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