The Baptist Church, Melton Mowbray

12th May 2011

East Midlands 5 Pack + 1MIGRATION

Migrants Working in Northampton

Julian WilksSenior Environmental Health OfficerRegulatory Services

Northampton- Background

Borough Population > 202,000

Northampton is in the Midlands, so centralised for the UK

NBC has excellent access to all the major trunk road networks including M1, M6, M40, A14, A1 that services majority of UK

Region attracts a hub of logistics/ distribution warehouses from leading retail and food businesses,

Food Tesco, Sainsburys (Europe's greenest depot), Morrisons,

Waitrose, Asda, Coca Cola etc

Retail Panasonic, Travis Perkins, Black Decker, Blacks etc.

Northampton- Background

LA and HSE enforce H&S in approx. . 6,100 business premises

4 major industrial parks in NBC

Approximately 364 warehouses (May 2011 figures)(May 2011 figures)

IDCs, NDCs and RDCs with many ‘flag ship’ depots

76 employment agencies are based in Northampton that service surrounding businesses across EA boundaries;

Actual contracted employee numbers - Unknown (thousands)

Brackmills Industrial Park

Who is a ‘migrant worker’

HSE definition of a ‘migrant worker’

“A migrant worker is considered to be someone who is or

has been working in Great Britain (GB) in the last 12

months, and has come to GB from abroad to work

within the last 5 years”

www.hse.gov.uk/migrantworkers/

How are ‘migrant workers’ employed

Directly (client/ employer)labour user - is a person who hires, or users employs

migrant workers.

Indirectly (agencies)labour provider – is a person, or company who supplies

workers to a third party. This includes employment agencies, employment businesses and gangmasters

i.e. staffline, templine, blue arrow (recruitment agencies)

(approx. 76 in Northampton)

Clients sign up agencies, either;

locally - local office

National - De Poel Managed Services (brokers)

Why do businesses employ ‘migrant workers’

• Improve the flexibility of workforce• Short term staff cover• Less regulation around agency staff• It is expensive to recruit directly• To meet seasonal, casual, temporary requirements• Agency paid less than perm staff

Generally happy to undertake hard, laborious,monotonous labour intensive work.

(Source, REC 2010)

Main contracts used for ‘migrant workers’

Contract of employment (also known as ‘contract of service’)

Not defined in law, or case study. Determined by various tests, to decide whether a relationship exits. (HSE)

Factors as whether a ‘contract of employment’ exists, can include; - written terms (if contract exists) - practical circumstances of the relationship. As the terms of the contract can be expressed (e.g. written or orally agreed) or implied (e.g. from actual practice).

Other factors includeDegree of control exercised over workers ‘master servant relationship’Whether employer can suspend, dismissWho pays the wagesWho fixes times and dates and place of workWho supplies PPE.

Contracts used for ‘migrant workers’

Contract of employment (Con’t)

Problems - Commonly, a written contract is NOT provided for migrant workers, usually informed to be ‘self employed’

- As No contract is signed, migrant workers are free to register with multiple agencies, so finding multiple contract work placements

- Agencies DO NOT monitor individual hours worked by a migrant worker, who regularly works at other agencies, so working hours/ allowances are exceeded (back to back shifts)

- Agencies commonly do not accept any H/S responsibilities, making clients sign to accept full liability and responsibility, as stated in standardised condition para 8/9.

Contracts used for ‘migrant workers’

Contract for services Is a contract whereby a person is merely under an obligation to perform some work, or services for another person, without an employment relationship being created between the two. (HSE)

Problems

- Waters down any joint responsibilities and clarification, between the agency and client.- EA legal services avoid taking legal action

Other types of contracts used; Terms of engagement

Certificate of business (Sets the parameters of business arrangements)

Contracts used for ‘migrant workers’

Service level agreement

Signed written agreement between ‘labour provider’ (agency) and ‘labour user’ (client). Details commitment and operational contractual arrangements Contains Health and Safety responsibilities of the agreement (clauses and conditions in detail in small print on the back).

Problems - Commonly, these written agreements are signed at HO, by reps (contract managers), and remain at HO, so sites DO NOT get informed of H/S responsibilities they have towards agency staff.

- Agreements contain standardised literature, that is NOT made site specific.- Induction training is NOT usually carried out by provider, but, if it is, clients do not pay (Staffline) so training is inadequate.

Priority topic programmes (workplace transport, MSDs) • visits highlighted significant shortcomings

F2508 (RIDDORS) frequently had ‘foreign nationals’ as IP

Accident investigations identified, foreign nationals as; • Significant contributors to accidents

• Main causation of accidents

• Fatality case involving Mr Lajos Nemeth (IP), July 08

Multiple organisations obscure H/S arrangements & clarity

Casual work + temporary (migrant) worker = high risk

NBC intervention visits

RIDDOR Notifications to NBC

313 317

248235

201186

0

50

100

150

200

250

300

350

2005 2006 2007 2008 2009 2010

Year (April/ Mar)

Nu

mb

er

of

Ac

cid

en

ts

3 DayMajorHosp PubFatal EmpFatal Pub

Approx 80% of notifiable are WT related

Cultural problem areas

FOUR problem areas have been identified as potential problems that require addressing by employers;

– confusion, or unfamiliarity (due to inexperience)– communication (lack of English) – competence (no previous H/S training overseas)– culture(s) in the workplace (lack of acc. reporting)

coupled, with ‘labour intensive jobs’, or ‘unsocial working hours’ causes ‘high risk practices’

Picking activities - ‘high labour required’ (pick rates/ per hr)HGV drivers - night shift work

Migrant Workers may:

not understand training or instruction misunderstand safety critical communications or be unable to use them to warn others not be able to communicate effectively with supervisors Eastern European supervisors do not report complaints to higher levels, ‘eastern European trait’ Not understand each other minimal training provided no induction training foreign FLT certificates, or inadequate

example: NYK (Senior MHE instructor failed 8 out of 12)

Specific problem areas

Fatality case

Companies - host depot (*)- logistics and transport contractor (**)- employment agency supplies IP to **

Scenario

• IP arrives to work at 19:00 hrs • IP carries out a pre shift check on HGV (tractor coupled with fully laden trailer)• IP disengages trailer parking brakes, tractor hand brake already disengaged, vehicle starts ‘free rolling’, crushes IP (staff member in canteen observes IP on yard (40 mins later)

Fatality case

Facts of case• IP (Romanian) had worked on site for 6 weeks prior to incident.• IP had received no proper familiarization, or induction training from either his employment agency (service provider) or transport undertaking (service user).• Service user had NOT carried out temporary worker RA • There was a RA and SSoW in place for ‘coupling activity’

(main causation of accident)• NO communication, or evidence that IP, or ‘employment agency’ had seen SSoW.• Trailer parking was uncontrolled and cramped.

Areas of concern• NO written ‘contract of employment’ in place, so legal services would not proceed with prosecution• Multi causal organisational failures, contributed to fatality

Slovakian agency staff working without rest betweenday shifts, causing tiredness/ fatigue

Other examples

Two Slovakian staff were sent home at 14:00hrs, as LLOP drivers were seen driving erratic and unsafe.

They started working on a night shift the day before (22:00hrs- 06:00hrs)

Only 6 hrs rest between shifts, required time to leave work, sleep, eat and travel (30 mins between each Tesco depot)

A quick inspectors checklist Ensure clients test migrants for English to establish a minimal entry level.

Ensure all responsibilities are clarified and agreed between ‘user’ and ‘provider’.

i.e. whether employees need to be employed directly, or indirectly

Ensure special skills, or qualifications have been identified.

Ensure workers have received specific ‘information, instruction and training’ and received on site familiarisation training relevant to their tasks.

Ensure RAs are completed by ‘user’ and ‘provider’

User ensure all tasks that workers are exposed too are assessed

Provider to ensure client has conducted RAs, so ensuring workers are safeguarded, controls implemented, PPE provided.

Ensure tasks (practices and SSoW/ SWP) are understood,

Ensure ‘terms and conditions’ of employment, time keeping kept, recorded.

Many vulnerable workers suffer because they do not legally count as ‘employees’ with a contract of employment. Vulnerable workers (migrants) are still receiving increased injuries caused by accidents in the workplace Health and Safety arrangements and responsibilities need communicating effectively between ‘labour providers’ and ‘labour users’ to ensure there H/S is safeguarded.

There are no controls, or provisions to monitor the number of hours worked by a migrant worker, between agencies, that causes fatigue and tiredness.

SUMMARY

FUTURE

(New Legislation SOON to come into force Oct 2011)

The Agency Workers Regulations 2010

LAs need additional guidance, or clarity on tackling ‘who is the employer’ when multiple businesses involved.

Employment Agencies should only send out workers when fully rested.

Client businesses need to accept full responsibilities (+ costs) for providing full induction and familiarization training and provide training as given to permanent employees.

NBC project leader for Northants county to tackle agencies, clients to ensure migrant workers H/S is safeguarded in the workplace. (possibly secure Migration Impacts Funding)

Work to date

• SHAD in 2008 (later)

• Programmed ‘local priority topic’ for 2011-12

(draft inspection form – Focusing on clarification, arrangements and responsibilities, between provider and user, to safeguard the worker)

• Further joint working with UK Border Agency

• Working with local/ regional Union reps, stakeholders and the HSE outreach worker

• November 2009

• NBC/ SNDC planned and executed SHAD

• Invited ‘Labour Providers’ & ‘Labour Users’

• Tried to tackle; ‘who is the employer’

Safety Health Awareness Day

To promote and clarify health and safety responsibilities

to labour providers (employment agencies) and labour

users (clients) that either employ, contract or service

out migrant workers.

To develop new partnerships with government agencies

& bodies that aim to protect migrant workers. Then plan,

organise and deliver a SHAD, as a joint partnership

approach, to a delegation, to raise awareness, then

assess the ‘needs of businesses’ and evaluate the SHAD

Aims

- Multi-agency approach

- Interested parties;

• Government Agencies (enforcers)

• Government Advisors

• Employment businesses (labour providers)

• Clients (labour users)

• Trade Association

SHAD

Government Agencies

UK Border Agency

secures UK borders and controls migration into the UK

Gang Masters Licensing Authority

check & licence businesses that supply labour to specific industry

Employment Agency Standards Inspectorate (BIS) -

raise standards and regulate agencies that employ vulnerable

migrant workers

Health and Safety Executive – responsible to provide

legislation, enforcement, and guidance on H/S at work.

SHAD

Government Advisors

Health and Safety Laboratory – to provide technical and

expert support to HSE, LAs and private industry.

Recruitment Employment Confederation, trade association

Stakeholders

The Shropshire Group (G’s)- agricultural rep UK largest

independent grower, producer and provider of produce

Panasonic UK- leading supplier of consumer and business

related electronics products

Staffline- a national H.R. & outsourcing agency

SHAD

Good

SHAD satisfies Hampton review, reduces administration

On evaluating the SHAD, 85% delegates preferred SHAD, opposed to 5%, who preferred an inspection.

Most delegates preferred SHAD opposed to visit (free food)

Bad

High % of agencies do NOT accept Health and Safety responsibilities, as only a small percentage came to SHAD

Good and Bad Practice

Thank you for listening

Acknowledgements:

John BennettAnne Fairweather