EU: Directive gives temporary agency workers new rights
We examine the contents of the new EU Directive on temporary agency work, which aims to ensure that agency workers have the same basic working and employment conditions as the direct employees of the companies where they carry out their assignments.
On this page:
History
Scope
Aim
Definitions
Review of restrictions or prohibitions
Equal treatment
Access to employment, facilities and training
Representation of agency workers
Information for workers’ representatives
Final provisions
Reactions.
Key points
|
History
Efforts to regulate the employment conditions of temporary agency workers across the EU go back more than a quarter of a century. The European Commission first proposed a Directive on the subject in 1982 but the initiative failed to win adoption in the Council of Ministers. In 1990, the commission tried again, issuing a package of three draft Directives on “atypical workers”, including temporary agency workers, covering their working conditions, “distortions of competition” (including equal treatment), and health and safety. Only one of these proposals gained council approval - Directive 91/383/EC on the health and safety of workers with a fixed-term or temporary employment relationship.
In September 1995, the commission consulted EU-level trade union and employers’ organisations on the issue of “flexibility in working time and workers’ security”, which covered part-time work, temporary agency work and fixed-term contracts. The social partners decided to open separate, successive negotiations on the three issues. In 1996, they concluded a European framework agreement on part-time work (subsequently implemented by Directive 97/81/EC) and in 1999 they signed an agreement on fixed-term work (implemented by Directive 1999/70/EC).
In May 2000, the social partners started negotiations on temporary agency work, but these talks broke down irretrievably in May 2001. Therefore, in March 2002, the commission proposed a draft Directive on “working conditions for temporary workers”. The basic principle was that temporary agency workers should, during an assignment at a user undertaking, be treated at least as favourably as a comparable worker in the user undertaking in respect of basic working and employment conditions. Member states could waive this equal treatment in the case of assignments lasting less than six weeks.
The European parliament gave the proposal a first reading in November 2002, calling for a number of strengthening amendments, including the removal of the possible six-week delay in application of equal treatment for agency workers. Council discussions in 2002, 2003 and 2004 revealed deep differences between national governments, notably on the equal treatment issue. Talks stalled for three years until the proposal was revived, on the basis of a new text, in late 2007. After further revisions and compromises, the council agreed on a common position in June 2008. The title of the text was changed at this stage from a Directive on working conditions for temporary workers to a Directive on temporary agency work.
The council’s agreement on the Directive on temporary agency work was linked with its discussions on the draft Directive revising Directive 2003/88/EC concerning certain aspects of the organisation of working time. Notably, the UK reportedly dropped its opposition to the agency work Directive in exchange for the retention (if in a more restricted form) of the working time Directive's “opt-out” provisions - the option for member states not to apply the Directive's maximum average weekly working time of 48 hours if a worker agrees to this individually.
On 22 October 2008, the European parliament approved the council’s common position unamended, thereby enabling it to be adopted formally as a Directive (2008/104/EC) on 19 November 2008.
Scope
The Directive (according to its art.1) applies to workers with an employment contract or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under the supervision and direction of these undertakings. It applies to public and private undertakings that are temporary work agencies or user undertakings engaged in economic activities, whether or not they are operating for gain.
Member states may, after consulting the social partners, decide not to apply the Directive to employment contracts or relationships concluded under a specific public, or publicly supported, vocational training, integration or retraining programme.
Aim
The Directive’s purpose (set out in art. 2) is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by: applying the principle of equal treatment (see Equal treatment) to temporary agency workers; and recognising temporary work agencies as employers. At the same time, the Directive seeks to take into account “the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working”.
Definitions
For the purposes of the Directive, the following definitions apply (art. 3):
- A “worker” is any person who, in the member state concerned, is protected as a worker under national employment law.
- A “temporary work agency” is any natural or legal person who, in compliance with national law, concludes employment contracts or relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under the undertakings’ supervision and direction.
- A “temporary agency worker” is a worker who has an employment contract or relationship with a temporary work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction.
- A “user undertaking” is any natural or legal person for which, and under whose supervision and direction, a temporary agency worker works temporarily.
- An “assignment” is the period during which a temporary agency worker is placed at a user undertaking to work temporarily under its supervision and direction.
- “Basic working and employment conditions” are the conditions laid down by legislation, regulations, administrative provisions, collective agreements and/or other binding general provisions in force in the user undertaking, relating to pay and the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays.
The Directive is without prejudice to national law as regards the definitions of pay, contract of employment or employment relationship, or worker.
Member states may not exclude from the scope of the Directive workers, contracts of employment or employment relationships solely because they relate to part-time workers, fixed-term contract workers or people with a contract of employment or employment relationship with a temporary work agency.
Review of restrictions or prohibitions
Prohibitions or restrictions on the use of temporary agency work may be justified only on “grounds of general interest relating in particular to the protection of temporary agency workers, the requirements of health and safety at work or the need to ensure that the labour market functions properly and abuses are prevented” (art. 4).
By 5 December 2011, member states must - after consulting the social partners in accordance with national legislation, collective agreements and practices - review any restrictions or prohibitions on the use of temporary agency work in order to verify whether or not they are justified on these grounds. They must inform the commission of the results of the review. If restrictions or prohibitions are laid down by collective agreements, the review may be carried out by the social partners that negotiated the relevant agreements.
The Directive’s provisions on restrictions and prohibitions do not apply to national requirements on the registration, licensing, certification, financial guarantees or monitoring of temporary work agencies.
Equal treatment
The basic working and employment conditions (ie those relating to pay and working time) of temporary agency workers must, for the duration of their assignment at a user undertaking, be at least those that would apply if they had been recruited directly by that undertaking to occupy the same job (art. 5). A number of other rules in force in the user undertaking - as established by legislation, regulations, administrative provisions, collective agreements and/or any other general provisions - must be complied with. There are those relating to:
- the protection of pregnant women and nursing mothers;
- the protection of children and young people;
- equal treatment for women and men; and
- any action to combat discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation.
The Directive provides for a number of possible exemptions from this principle of equal treatment for temporary agency workers.
Member states may, after consulting the social partners, provide for an exemption from the equal treatment principle in respect of pay, in cases where temporary agency workers who have a permanent employment contract with a temporary work agency continue to be paid between assignments.
Member states may, after consulting the social partners, give them (at the appropriate level and subject to conditions laid down by the member states) the option of maintaining or concluding collective agreements that establish arrangements concerning temporary agency workers’ working and employment conditions which differ from the Directive’s equal treatment requirements. However, these agreements must “respect the overall protection” of temporary agency workers.
There is an additional exemption for member states (such as the UK) that do not have a legal system for declaring collective agreements universally applicable, or a system in law or practice for extending such agreements’ provisions to all similar undertakings in a certain sector or geographical area. Provided that an “adequate level” of protection is provided for temporary agency workers, these countries may, after consulting the social partners at national level and on the basis of an agreement concluded by them, establish arrangements concerning basic working and employment conditions that differ from the equal treatment principle. Such arrangements may include a qualifying period for equal treatment. In the UK, for example, the that equal treatment will not apply until an agency work assignment has lasted for 12 weeks.
The arrangements that deviate from the equal treatment principle must be in conformity with EU legislation and “sufficiently precise and accessible” to allow the sectors and firms concerned to identify and comply with their obligations. The member states involved must specify if occupational social security schemes - including pensions, sick pay or financial participation schemes - are included in the basic working and employment conditions concerned (in the UK, the TUC and CBI have agreed that they should not be included).
Member states must prevent “misuse” in the application of the Directive’s provisions on equal treatment and the exemptions from this principle. In particular, they should not allow the use of successive agency work assignments designed to circumvent the Directive’s provisions.
Access to employment, facilities and training
Temporary agency workers must be informed of any vacant posts in the user undertaking, in order to give them the same opportunity as other workers in the undertaking to find permanent employment (art. 6). This information may be provided by a general announcement in a suitable place in the user undertaking.
Member states must ensure that any clauses prohibiting, or having the effect of preventing, the conclusion of an employment contract or relationship between the user undertaking and the temporary agency worker after an assignment are null and void, or may be declared so. This rule should not affect provisions under which agencies receive a “reasonable level of recompense” for services rendered to user undertakings in terms of the assignment, recruitment and training of temporary agency workers.
Temporary work agencies may not charge workers any fees in exchange for arranging for them to be recruited by a user undertaking, or for concluding an employment contract or relationship with a user undertaking after carrying out an assignment there.
Temporary agency workers must be given access to the amenities or collective facilities in the user undertaking, in particular any canteen, childcare facilities and transport services, under the same conditions as workers employed directly by the undertaking, unless a difference in treatment is justified by objective reasons. Further, member states must take “suitable measures”, or promote dialogue between the social partners, in accordance with their national traditions and practices, in order to improve temporary agency workers’ access to:
- training and childcare facilities in temporary work agencies, even in the periods between their assignments, in order to enhance their career development and employability; and
- training provided for user undertakings’ workers.
Representation of agency workers
In most EU member states, worker representation bodies, such as works councils, must (or may) be set up in companies or establishments with a certain number of employees. For example, in France, works councils must be set up in companies with at least 50 employees. In the UK, statutory information and consultation rights on business and employment issues apply - if employees request them - in undertakings with 50 or more employees, although information and consultation does not necessarily occur through representatives or a standing body. At transnational level, the European Works Councils directive applies to undertakings or groups with at least 1,000 employees within the European Economic Area (EEA) and at least 150 employees in each of at least two EEA member states.
The Directive provides (in art. 7) that temporary agency workers must be counted, under conditions established by the member states, for the purposes of calculating the workforce-size threshold above which bodies representing workers - as provided for under EU and national law and collective agreements - are to be formed at temporary work agencies.
Alternatively, member states may provide that temporary agency workers count, for the purposes of calculating such thresholds in user undertakings, in the same way as if they were workers employed directly for the same period of time by the user undertaking.
Information for workers’ representatives
User undertakings must provide “suitable” information on the use of temporary agency workers when informing their worker representative bodies - set up in accordance with national and EU legislation - about the employment situation in the undertaking (art. 8). This is without prejudice to national and EU provisions on information and consultation that are more stringent and/or more specific, and in particular the Directive (2002/14/EC) on national information and consultation rules. This Directive provides for information and consultation on issues that include the situation, structure and probable development of employment.
Final provisions
Member states may apply or introduce legislative, regulatory or administrative provisions that are more favourable to workers than those provided by the Directive, and promote or permit collective agreements that are more favourable (art. 9). Implementation of the Directive does not constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields it covers. Member states and/or the social partners may lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the Directive’s adoption, provided that its minimum requirements are respected.
With regard to penalties, member states must (art. 10):
- provide for “appropriate measures” in the event of non-compliance with the Directive by temporary work agencies or user undertakings;
- ensure that adequate administrative or judicial procedures are available to enable the enforcement of the obligations deriving from the Directive;
- lay down “effective, proportionate and dissuasive” penalties for infringements of national provisions implementing the Directive and ensure that they are applied; and
- ensure that workers and/or their representatives have adequate means of enforcing the obligations under the Directive.
By 5 December 2011, member states must adopt the laws, regulations and administrative provisions necessary to comply with the Directive, or ensure that the social partners introduce the necessary provisions by way of an agreement (art. 11).
The European Commission will, in consultation with the member states and EU-level social partners, review the Directive’s application by 5 December 2013, with a view to proposing, where appropriate, “the necessary amendments” (art. 12).
Reactions
The European Commission welcomed the adoption of the Directive, saying that it means that “over 3 million temporary agency workers currently working across the EU will benefit from better protection of their working conditions”. Xavier Bertrand, the French minister of labour - France currently holds the EU presidency - called the Directive a “collective victory”, resulting from the support of the European parliament, the commission, the council and the social partners. “The adoption of this text definitively marks 2008 as the year of the relaunch of social Europe”, Bertrand stated.
The European Trade Union Confederation (ETUC) also responded positively. Its general secretary, John Monks, commented: “This is a very welcome signal that the deadlock in the development of social Europe is broken and that social progress at EU level is both necessary and possible. The Directive will establish the principle of equal treatment between agency workers and workers in the user enterprise, which will not only apply to national situations but also to cross-border agency work. This is very important in the current times of increased mobility of workers and services. The Directive also gives an important role to social partners to deal with the implementation and application of this principle in practice, which allows for flexibility while ensuring the protection of workers.”
The recognised EU-level social partners in the temporary agency work sector are the European Confederation of Private Employment Agencies (Eurociett) and, for trade unions, Uni-Europa, the European regional organisation of Union Network International (Uni). In May 2008, they agreed a joint declaration on the draft Directive, addressed to the EU institutions, aimed at influencing the final stages of debate.
Uni-Europa describes the final text of the Directive as being “broadly in line” with the May joint declaration, and regards it as an “important step forward for the protection of workers”. This is particularly positive for agency workers in EU member states where their terms and conditions are not currently regulated by legislation or collective agreements. However, Uni-Europa regrets that the Directive does not ban the use of agency workers to replace striking workers, as the social partners’ joint declaration had called for. Nevertheless, the Directive “opens the way for a more regulated development of the sector”.
Eurociett also welcomed the Directive and the fact that it largely follows the joint declaration, and said it will “improve the recognition of temporary agency work’s contribution to a well-functioning labour market”. Its president, Annemarie Muntz, said: “Eurociett has always supported proper regulation on our industry at European level.” Eurociett now calls on the member states to:
- review prohibitions or restrictions that apply to the use of temporary agency work and lift those that are “not justified or proportionate”, such as bans on the use of temporary agency work in the public sector in Belgium, France and Spain, or the limits on maximum contract duration that apply in some countries; and
- consult the sectoral social partners when implementing the equal treatment principle in order to take account of the specificity of national labour markets.
In the UK, Katja Hall, the CBI’s director of employment policy, said the Directive “will not be welcomed by employers” but is “less damaging than previous proposals as key flexibilities that underpin UK competitiveness have been protected”. She added that “more than half of agency assignments last less than 12 weeks and will be unaffected” by the Directive’s UK implementation, and welcomed the UK’s exclusion from the equal treatment principle of “occupational benefits that recognise the long-term relationship permanent staff have with an employer”, such as sick pay and pensions.
The TUC general secretary, Brendan Barber, said: “Too many agency workers in the UK have faced unfair treatment and injustice … Now agency workers will finally have a fair deal and be entitled to the same pay as permanent staff doing the same job, and receive much stronger legal protection from exploitation. The passage into law of [the] Directive means that opponents of more rights for temps have now lost, and the UK cannot now opt out of better rights for agency workers.”
This article was written by Mark Carley, editor of European Employment Review.
European Employment Review 419 (EER 419) contents
