Employment agencies providing workers when there's a strike

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 places a restriction on employment businesses providing work-seekers in industrial disputes. For the purposes of the regulations an “employment business” is a business that employs or engages work-seekers under a contract who in turn works under the supervision of another person. This practice is commonly referred as “temping”.

What are the restrictions?

As a general rule an employment business is not allowed to introduce or supply a work-seeker to a hirer to perform the following duties: 

  • the duties which are normally performed by a worker who is taking part in a strike or other industrial action (such a worker is referred to in the Regulations as “the first worker”); or 
  • the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker.

What if the employment business is unaware of the reason for which the hirer seeks a work-seeker?

An employment business who does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action will not caught by the restriction. However, it may be considered prudent for an employment business to routinely ask hirers why they require workers in order to satisfy the “no reasonable grounds for knowing” requirement.

Does the restriction apply to all strikes and all forms of industrial action?

The restriction does not apply if, in relation to the first worker, the strike or other form of industrial action in question is an unofficial strike (often referred to as a “wildcat” strike) or other unofficial industrial action for the purposes of the Trade Union and Labour Relations (Consolidation) Act 1992.

What is classed as an unofficial strike or other unofficial industrial action?

A strike or other industrial action will be regarded as being unofficial where it is not authorised or endorsed by a trade union. In such circumstances it makes no difference whether the first worker is a member of the trade union who has authorised or endorsed the strike or industrial action or not, provided that some of the workers who are on strike are members of that trade union. If none of the workers who are on strike are members of a trade union the strike or industrial action will not be regarded as unofficial. 

A strike or other industrial action will be taken to have been authorised or endorsed by a trade union if it was authorised or endorsed by any member empowered by the rules of that trade union to authorise or endorse it or where it was authorised or endorsed by the principal executive committee, the president or general secretary or by any other committee of the union or any other official of the union (whether employed by it or not).