Temporary agency work directive to be implemented

The EU directive on temporary agency work was due to be implemented in Norway in the course of spring 2012. The government has proposed a number of measures to ensure compliance with the directive’s principle of equality and to counteract substandard employment practices in the temporary work agency industry. Trade unions have opposed the directive and fear that its implementation will lead to the setting aside of national legal limits on the use of temporary agencies.

Legislative proposal

In March 2012, the government presented a proposal for implementing EU Directive (2008/104/EC) on temporary agency work into Norwegian law (Prop. 74 L (2011–2012) – in Norwegian). The proposal was expected to be adopted before the summer holidays.

The directive will be implemented by incorporating its principle of equal treatment into Norway’s Working Environment Act (3.46Mb PDF), which relates to working environment, working hours and employment protection, and its Civil Service Act (31Kb PDF).

The directive includes provisions on working hours, holiday entitlements, wages and cost reimbursements, as well as provisions allowing temporary agency employees access to benefits and services in the company by which they are hired.

The new legislation also provides the government with the opportunity to introduce regulations that allow social partners to circumvent the general rules by applying a collective agreement. More general access to make such exemptions through collective agreements is not, however, introduced.

The government also proposes a number of measures to counteract substandard employment practices in the temporary work agency industry. These measures include:

  • enforcing the joint and several liability of the hiring company, making it responsible for agency workers’ salaries and other forms of remuneration, in accordance with the principle of equal treatment;
  • a duty placed on the temporary work agency to inform their workers about the pay they will receive;
  • a duty on the temporary work agency to inform the hirer of their services of the wages and working conditions of their employees;
  • the right of access for shop stewards to information about the wages and working conditions of temporary agency workers;
  • a duty on the hiring company to make information available to the temporary work agency outlining the terms and conditions of comparable workers;
  • clarifying the responsibilities of the hiring company with regards to working time;
  • a duty on the hiring company to consult shop stewards on the use of temporary work agencies.

Social partner reactions

Despite the fact that this directive is considered to be relevant to countries in the European Economic Area (EEA), and should be implemented by the European Free Trade Area (EFTA) and EEA states, there have been discussions in Norway about whether or not to incorporate it into the EEA agreement.

Opposition to implementation has been led by the organisation ‘No to the EU’ and the Norwegian United Federation of Trade Unions (Fellesforbundet), whose members are mainly in the building and construction sector and in the manufacturing industry.

Since the EU’s eastward expansion in 2004, Norway has witnessed a large influx of migrant workers from central European countries, and many of them have been channelled through temporary work agencies in the building sector. Trade unions fear that the directive will generate a further rise in the use of temporary labour at the expense of fixed-term employment in companies.

This fear has been made worse by uncertainty in large sections of the trade union movement over whether or not the present legal restrictions on temporary labour would have to be abolished as a result of the directive.

Current limits on temporary work

At the centre of discussions are the limits established in section 14-12 of the Working Environment Act (3.46Mb PDF). It stipulates that temporary labour may only be resorted to when there is a temporary demand for workers, for example to cover for sick leave, layoffs, production peaks or where there is a need for specialist competence for a temporary period.

Employers believe this restriction may be in conflict with the directive, and trade unions fear that section 14-12 may be challenged and removed as a result of the directive being implemented.

For this reason, Fellesforbundet has called on the authorities not to implement it, while at the same time introducing its principle of equal treatment as set out in Article 5 of the directive.

The Norwegian Confederation of Trade Unions (LO) has given its support to the package of measures proposed by the government, but has issued a statement (in Norwegian, 2.73Kb PDF) saying that it believes the uncertainty that prevails suggests that Norway should abstain from implementing the directive.

Employer opposition

The employer side has been highly critical of several of the measures proposed by the government to enforce the directive, particularly the proposed introduction of a joint and several liability placed on the hirer of temporary agency workers.

The Confederation of Norwegian Enterprise (NHO) argues, among other things, that it constitutes an invasive action creating a competitive imbalance, making it easier for larger temporary work agencies to acquire assignments than for smaller agencies (see report on mediation proposal for the joint agreement for the construction industry (in Norwegian)). NHO is also of the opinion that the imposition of liability contravenes Article 4 of the directive, which severely limits the circumstances under which the use of agency labour can be restricted. NHO also believes that employees’ rights under the principle of equality are too vague to be sufficiently enforceable.

The employers’ confederation is also opposed to the introduction of a duty to consult shop stewards in the hirer company on the use of temporary agency workers, since such an obligation is already established in collective agreements and in other more general rules about information and consultation right within the national legal framework.

It also questions a measure that effectively gives shop stewards the role of ‘monitoring authority’, with the powers to judge the extent to which the employers’ assessments are in line with the legal framework.

2012 wage settlement

The regulation of the temporary work agency industry also featured in discussions during the 2012 bargaining round. The bargaining parties eventually agreed that various nationwide collective agreements could be made applicable to temporary work agencies that hire out workers within the scope of each relevant agreement area. This means that the temporary collective agreement established for temporary work agencies in 2010 no longer applies.

Kristin Alsos, Fafo

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