Guiding Principles for Companies

Guiding Principles
for Companies
Principles to consider when
using non-UK contractors and
labour on engineering
construction sites
Guiding Principles for Companies
1.0 Background
Citizens of all but two of the European Union (EU) States have the automatic right of
residency and employment in the UK and the National Agreement for the Engineering
Construction Industry (NAECI) 2007-2010 makes specific provision for the terms of
employment of posted workers on inscope work i.e. they must be paid the same as UK
employees and strictly in accordance with NAECI. The only exceptions are travel related
arrangements which may be broadly equivalent to those enjoyed by UK workers.
With the recent downturn in the UK economy and an easing of the skills availability the
use of non-UK labour on NAECI inscope work assumes an ever-higher profile than
previously and will be closely monitored by all parties.
NAECI section 5.1 gives companies the right to recruit whoever they believe is most
suitable to perform the tasks in question. There will clearly be occasions when, for
varying reasons, a company may award a package of work to a non-UK contractor
(many of whom are already in membership of ECIA). Non-UK contractors are likely to
already employ some labour resource which they may have used on previous projects
and which they may choose to utilise on the work they have secured in the UK.
Provided that this labour force consists of EU citizens (except those from
Bulgaria and Romania - see Border and Immigration Authority website:
www.ukba.homeoffice.gov.uk/workingintheuk/eea for further clarification) using such
employees is entirely lawful within both European and UK law. Be aware that citizens
of EU “accession states” must comply with UK registration requirements.
The following notes are intended as guidance to help companies promote and
encourage good industrial relations on projects and sites in scope to NAECI.
2.0 Early action
Full consideration should be given to industrial relations matters in developing the
contract strategy, evaluation and award. Where a non-UK contractor is determined,
clarification should be sought to:
Establish that the non-UK contractor is aware that the project requires all labour to
be directly employed under the terms of NAECI. Check that the contractor
understands their obligations under the NAECI. It is a requirement that the pay of
non-UK labour is fully compliant with NAECI, which will ensure parity of terms and
conditions of employment. If there is a Supplementary Project Agreement (SPA) in
place, make sure that the non-UK contractor is aware of and ready to comply with its
contents (including complying with payroll audit)
Engineering Construction Industry Association
Guiding Principles for Companies
Make certain that the non-UK contractor is aware that in order to access National
Joint Council (NJC) procedure they must be in membership of ECIA. If they are not
already in membership they should be encouraged to contact ECIA as soon as
possible
It is legal for non-UK companies to supply their own non-UK employees, but where
vacancies are advertised, make sure that UK workers are considered in the same way
as anyone else
Make certain that if the non-UK contractor chooses not to employ UK workers
directly but needs to source additional temporary labour that they are made aware
of the details of Employment Businesses who are in membership of ECIA
Determine the supervision requirements
3.0 Advance notice
The company should ensure that there is consultation with the local trade union
officer/site stewards at the earliest opportunity to discuss with them:
The name of the appointed contractor
The relevant scope of work
The resourcing strategy to be pursued
Do not allow a situation to occur whereby non-UK labour has already mobilised to a site
before the Trade Unions have been formally advised.
Ensure that there is also communication with the local ECIA Employee Relations
Executive (ERE) at all times. The ERE will provide advice and guidance and can facilitate
non-UK contractors gaining a greater awareness of the full application of NAECI terms
and conditions.
4.0 Be aware of the local
labour market
Always consider whether there are competent workers available locally. If there are, it
is good practice for the non-UK contractor to explore and consider the local skills
availability and to consider any applications that may be forthcoming.
Engineering Construction Industry Association
Guiding Principles for Companies
5.0 Continue dialogue with non-UK
contractor prior to mobilisation
Ensure that the contractor is aware of the requirements of UK Health and Safety
legislation. Depending upon the non-UK contractor's labour mix and supervisory
capability there may be some language issues. ECIA may be able to provide some
health and safety material that has been translated into some other European
languages. Additional health and safety guidance can be found in the Appendix to this
document.
Make sure the non-UK contractor is aware that he must satisfy himself of the
competence of his workforce.
Additionally, all contractors are legally required to ensure that their employees can
provide the necessary documents to evidence their right to work in the UK.
6.0 Public relations
The release of factually accurate information at timely points is a pre-requisite for good
public relations. Whilst discussions with trade union representatives should be
continuous, there is merit in giving the site as a whole, advance notice of the
mobilisation of non-UK labour.
7.0 Facilities and welfare
Ensure that adequate welfare facilities (cabins, catering facilities, inclement weather
shelters) are available. Bear in mind that because of cultural differences, non-UK
workers may have different expectations with regards to food. Encourage integration
of the workforce where possible, but give consideration as to whether provision of the
food is appropriate for the nationalities represented. Non-UK labour may also be
unfamiliar with the duration and frequency of tea and meal breaks under the NAECI.
This may require some management input in the period after mobilisation. However,
only in extreme circumstances and following local agreement can a SPA be amended to
incorporate any deviation from the standard NAECI daily work pattern.
Non-UK contractors should also be made aware of the NAECI provisions around the
scheduling and taking of periodic leaves.
Engineering Construction Industry Association
Guiding Principles for Companies
8.0 Summary
ECIA understands the commercial pressures on its members when determining the
award of contracts and resourcing labour. This guidance has been issued to encourage
ECIA members to establish and maintain good communication between all the parties
and to help determine harmonious industrial relations - this is likely to be best achieved
through consultation and working together.
Engineering Construction Industry Association
Appendix
Appendix:
Non-UK workers and contractors –
key Health and Safety (H&S) issues
This appendix highlights key points to take account of and identifies further information
that members may find useful in meeting H&S requirements when working with non-UK
workers and contractors.
Important general point
The law allows for significant judgement and flexibility in what constitutes good
practice. However, whatever good practice organisations describe, if that good practice
is not delivered this will invariably suggest poor compliance with legal requirements and
in turn may provoke IR controversy. In all respects it is important that member
companies can demonstrate that what their policies and procedures say really does
happen in practice.
ECIA’S understanding of the Health
and Safety Executive (HSE) view
HSE recently carried out an in-depth inspection of H&S arrangements for non-UK
workers at a major NAECI site. Arrangements at that site reflected the advice in this
appendix. We understand that HSE inspectors were broadly satisfied with what they
found. ECIA is therefore confident that the following advice reflects what HSE
inspectors seek in respect of non-UK workers and non-UK contractors.
Dealing with the needs of
non-UK workers
Member companies should have explicit policies describing what and how they deal
with the issue
H&S competence is the responsibility of the company and arrangements for
assessing that competence must be in place. (Note that H&S competence is not
synonymous with overall competence i.e. a safe welder is not necessarily an efficient
one and vice versa)
Engineering Construction Industry Association
Appendix
The Approved Code of Practice Guidance that supports the Construction (Design and
Management) Regulations (CDM), is clear that H&S competence assessment is a
matter of making informed judgements. It is not a matter of mandatory possession
of one particular qualification or another; but
In practice possession of Client Contractor National Safety Group (CCNSG) cards is
probably the most practically reliable way of demonstrating appropriate levels of
core H&S awareness (Note that CCNSG course can now be arranged in any language.
Contact the CCNSG Scheme Manager at Engineering Construction Industry Training
Board (ECITB))
H&S legislation does not require that non-UK workers speak English; but
It does require that they receive information they need to be able to work safely, in
a form that they can understand. Thus translation of e.g. inductions, signage, work
permit documentation, method statements etc.
It is essential that non-English speaking workers are able to communicate effectively
with supervisory staff e.g. bilingual supervisors, distributing English speakers across
different gangs, providing translators
Worker performance should be monitored (as should UK workers') and action taken
where necessary to rectify any shortcomings noted e.g. extra training, enhanced
supervision etc.
Managing contractors should ensure that contractors they engage who employ nonUK workers take account of the latter's needs to reflect the above
Working with non-UK contractors
1
When a contractor engages a non-UK contractor to work for them on a UK site
– The appointing contractor should confirm that the appointed contractor is aware of
UK H&S legal requirements and the policies and procedures required in response to
them
2
When a non-UK contractor engages another contractor to work on a UK site
– The appointed contractor should confirm that the appointing contractor is aware of
UK H&S legal requirements
Engineering Construction Industry Association
Appendix
– The appointed contractor should establish what the non-UK appointing contractor's
H&S policies are and alert them if they do not appear to comply with UK legal
requirements
– It is strongly recommended that there is documentary evidence to confirm
both 1 and 2 above (which can be included in contractual papers)
– It is considered a reasonable requirement that if foreign contractors are
working on or managing UK construction projects, they should be able to
communicate effectively with other contractors in English
More information
ECIA guidance 'Working with foreign contractors in the UK and managing the health and
safety of foreign or non-English speaking employees' is available free to members on
the ECIA website:
http://www.ecia.co.uk/pages/index.cfm?page_id=27
Pocket sized health and safety booklets with key messages aimed at workers are
available in Polish, Romanian, German and Portuguese (as well as English). They can
form part of site induction packages. Use this link for more information:
http://www.ecia.co.uk/pages/index.cfm?page_id=27
More detailed information on CCNSG provision in different languages is available via the
CCNSG website:
http://www.ccnsg.com/what%27s-new/
To arrange CCNSG training in foreign languages contact the CCNSG Scheme Manager:
http://www.ccnsg.com/index.php?option=com_ezform&Itemid
=243&id=contact-us
Engineering Construction Industry Association
ECIA guidance on the utilisation of
non-UK contractors and labour.
For further information please contact:
5th Floor, Broadway House, Tothill Street, London SW1H 9NS
Tel: 020 7799 2000 l Fax: 020 7233 1930 l Email: ecia@ecia.co.uk l www.ecia.co.uk