Reglamento Disciplinario

It has been noted how the hotel trade is intrinsically characterised by a highly fluctuating demand and it has always relied on seasonal and migrant labour to fill in the vacancies in the busiest periods o f the year. According to the TUC’s recent report on agency work (TUC 2007), the pattern o f maintaining a ‘core stafF and a ‘buffer zone’ is a structural feature o f the industry, which derives from the oscillating demand depending on seasonal variations in tourism levels (ibid. 20). The ‘atypical’ contractual arrangements are therefore aimed at covering the ‘day to day operations’ required during the busiest times.

In a recent research on agency labour in London’s hotels and hospitals, McDowell et al. (2008a) pointed out how international hotel chains rely almost exclusively on agency work for their entry-level staff and also for some professional vacancies. In this sense, the key role played by the agencies in the ‘remaking o f labour market conventions’ lies in supplying flexible and vulnerable

workers while ‘managing the costs and contradictions o f employing temporary workers on behalf of the end employers’ (McDowell et al. 2008a: 751). The increasing reliance on agency work as a reflection of cost cutting strategies through subcontracting has been highlighted as a common trait of the industry across different countries (Bernhardt et al. 2003, Bolton and Houlihan 2009). What forms of subcontracted and ‘non-standard’ work are actually present in the sector in London?

As also emerged from the exploratory research, hotel and catering workers in London display a wide range o f contractual types: they can be hired directly or indirectly by the hotel or through agencies, or they can be directly employed while remaining ‘casual,’ on a permanent or part-time basis. But how do the employers reduce labour costs in practice? There are various differences in terms and conditions o f employment between in-house and agency workers. For instance, agencies do not provide sick pay or holiday pay and these workers are not paid for staying on to finish their workload after the end o f a shift (TUC 2007). A major drive for employers by hiring agency staff for hotels lies in the possibility o f avoiding those ‘fringe benefits’ (i.e. maternity leave payments and holiday entitlements) that hotels would normally pay to their permanent staff (Lai and Baum, 2005: 96). Another major difference between agency and in-house workers lies in the juridical definition o f the ‘employee’ as opposed to the ‘worker’: the employment status o f an agency worker is essentially different from an ‘in-house one in that she is not considered a proper employee. Rather, she is understood as a worker on a contract fo r services (TUC 2007: 8). This status implies only statutory minimum entitlements and workers’ exclusion from important rights and benefits such as protection from unfair dismissal, redundancy protection, a minimum notice period and rights to maternity and paternity leave (ibid.).40

More recently the UK Government has introduced a legislative proposal which is currently under consultation. The proposal for the regulation o f agency work theoretically imposes equal treatment for agency workers, although not complying with the EU ‘Agency Workers Directive” s

40 The general employment rights that apply to all workers independently from their contractual status are in fact limited to the right to the National Minimum Wage and to fall under Working Time Regulation (TUC 2007: 6).

prescription o f a qualifying period o f six weeks (TUC 2007: 30). In fact, under the UK legislation implementing the EU Directive as currently designed, temporary agency workers will be entitled to equal treatment ‘with directly recruited employees in respect of basic working and employment conditions, including pay and holidays’ only after 12 weeks41. The Government decided to delay the regulations’ coming-into-force until October 2011 in order to ‘[give] recruiters and their clients time to prepare and plan’ and because it was aware o f the need ‘to avoid changing requirements on business until the economic recovery is more firmly established’ (TUC 2009). The TUC expressed its concern that agencies will circumvent the new rights ‘by moving agency workers between jobs within the same workplace, or by rotating agency temps on short-term assignments between different employers. Moreover, existing loopholes in the legislation will provide ‘rogue employers’ the opportunity to use ‘bogus self-employment’ to avoid equal treatment rights for agency workers (ibid)42. Independently o f the future development o f this legislation and the actual possibility of its enforcement, it is apparent that different juridical statuses directly produce different material conditions between in-house and agency workers.

Differences in wages and their calculation between in-house and agency workers were particularly striking in the hotels researched. One crucial aspect which emerged from the fieldwork in the staffing agencies consisted in their paym ent systems, based on the ‘piece-rate’ where the payment is ‘by results’ rather than per hour. Management normally justifies the use of ‘formal or actual piece-rate pay strategies’ with the need to match fluctuating occupancy rates with staffing without having extra costs (Vanselow et al. 2009: 13). In practice, room attendants paid per room often receive a lower pay than in-house staff: if they do not manage to clean the established amount of rooms they risk not getting even the minimum wage but being paid according to their level o f performance.43

41 See for latest update http://www.eurofound.europa.eu/eiro/2009/10/articles/uk0910019i.htm 42 See TUC comments on the new regulation at http://www.tuc.org.uk/law/tuc-17381-f0.cfm.

43 Even in a country like Germany, where outsourced cleaning contracts are required by law to pay the same rate set by collective bargaining in the whole hospitality industry, agency room attendants tend to earn a lower wage than in-house staff (Vanselow et. al 2009: 13).

Since the 1990s the debate in management studies and sociology exploring the restructuring or ‘dismantling’ o f the ‘previous world o f work’, described the major changes in terms of casualisation, job insecurity and the emergence o f a ‘dual labour market’ (Berger and Piore 1980, Kalleberg 2000). The workforce is purportedly segmented between, on the one side a group of stable, qualified and protected workers with relatively high wages and on the other an unstable, minimally qualified and unprotected labour force dispensing subsidiary services (Boltanski and Chiappello 2007: 229). The implication is that those in a stable position are often represented to the casual as ‘privileged’ whereas the latter group is accused of being ‘disloyal’ and pushing down the terms and conditions of the former (ibid. 243). However, a simple dichotomy between agency and in-house workers does not appear adequate to grasping the more complex diversification of employment situations that can be found within hotels. McDowell and colleagues report how, while apparently only 6% o f all British workers were employed in 2007 on a temporary basis according to LFS data44, the diversity o f statuses included under the category o f ‘temporary work’ makes it very difficult to collect accurate data about agency workers. Extricating simple categories from the blurred boundaries between temporary and ‘contract work’ on the one hand, and between contract and agency workers on the other is no simple task, and contributes to the lack of certain data about the actual numbers o f agency workers in each sector of the labour market (see also Kalleberg 2000). Evidence from qualitative research on case studies across different London service jobs (Evans et al. 2005, May et al. 2006), has demonstrated how hotels recruit more often through agencies rather than hiring fix-term contract workers, while in other services such as NHS hospitals, one can find mixed forms o f recruitment whereby workers have permanent or temporary contracts while also being employed through agencies (McDowell et al. 2008a). While other staff such as casual and

^In fact there are very controversial data on the actual number o f agency workers in the UK. For instance McDowell et al. (2008a) contends that the estimation o f Forde and Slater (2006) (drawing from the LFS 2004), suggesting that agency workers made up 16% o f all temp workers, about 270,000, underestimate the real scale o f the phenomenon and reports other data drawn from the Department o f Trade and industry according to which the figure was closer to 600,000 (ibid. 755). The fact that official figures on agency work are usually an underestimate clearly appears when these numbers are confronted with those provided by the CIETT, the International Confederation o f Private Employment Agencies. The CIETT estimates that in 2008 there were 1.22 million workers employed by agencies in the UK, which represents the third biggest suppliers o f agency workers after the USA and Japan. This constitutes around 4.5% o f the workforce, substantially more than other OECD countries. The same source reports that together with the USA and Japan, the UK accounts for the 55% o f all agency workers worldwide (CIETT 2010: 20). The TUC report on vulnerable work (2008) claims that the real number must lie somewhere in between, while those who do not show up in the statistics must suffer the most vulnerable position.

seasonal workers are often considered as further ‘non-standard categories’, from present research it emerged how the picture in London hotels is further complicated by the presence of other hybrid forms o f contractual status such as workers directly employed by the hotel but on precarious or

casual terms.

Partly overlooking these differentiations, the trade union literature provides the simplistic picture o f a ‘two-tier workforce’ in the hospitality sector (TUC 2007: 22) with growing (migrant) agency workers among those with the poorest working conditions. Therefore a common argument in the discourse o f organised labour claims that casualisation has a dumping impact on all hotel workers’ terms and conditions, with agency labour pushing down the conditions of in-house employees. The TUC reports (2007, 2008) emphasise how ‘objectively’ in-house workers are ‘under threat’ of being substituted by the spread o f agency labour. This understanding of competition within a dual labour force in the sector and the trade unions’ ambivalent stance toward temporary labour have contradictory implications for agency workers, as would emerge in the dynamics between workers and trade unionists in the hotel workers campaign.