Tuesday, July 17, 2007

A striking question of law

Discussion arose with colleagues about the possible use of agency casuals as scabs during the present postal dispute . So what does the law say about the matter .

The Conduct of Employment Agencies and Employment Business Regulations 2003 and,in particular, Regulation 7. They are enacted under the Employment Agencies Act 1973.

Regulation 7 prohibits an employment business from introducing or supplying a work seeker to the hirer to perform the duties normally performed by employees of the hirer who are taking part in industrial action (or to perform the duties of other employees who may be moved by the employer to cover the work of those taking part in industrial action). There are circumstances when the regulations do not applyand that is when the individual employee of the hirer is taking part in a strike or other industrial action which is considered unofficial.

It is illegal for an agency to supply workers to scab during an official strike , but it is not illegal for the company with workers on official strike to hire and use agency casuals to scab and break the strike .

There does not seem to be any effective enforcement mechanism within the regulations. Agencies are policed through section 9 of the Employment Agencies Act allows the Employment Agency Standards Inspector (part of the DTI) to carry out investigations following a complaint, or to undertake inspections of and/or visits to any employment business. The enforcement of the legislation would appear to be on an application by the secretary of state either for criminal proceeding or a prohibition notice to a tribunal. The DTI can initiate criminal prosecution against the employment business. The maximum penalty is a fine of up to £5,000 per offence and a 10-year ban in carrying out an employment business. In addition, a tribunal, on an application by the secretary of state, may make an order prohibiting a person (including a company) from carrying on or being connected with the carrying on of an employment agency or employment business for up to 10 years on the grounds that the person concerned is unsuitable because of misconduct or any other sufficient reason.

Information gathered from here . Actual legislation found here .

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