Commission proposes Directive on temporary agency workers

A proposal for a new Directive regulating the working conditions of temporary agency workers was issued by the European Commission in March 2002. This followed the breakdown of social partner negotiations on this topic during 2001. The proposal aims to ensure equal treatment between temporary agency workers and comparable workers in the user company on a range of basic working conditions, including pay, working time, breaks and holidays.

The European Commission issued on 20 March 2002 a proposal for a European Parliament and Council Directive on working conditions for temporary agency workers. This is the third subject to be regulated within the framework of the Commission's September 1995 social partner consultation on the issue of 'atypical' work. This process has yielded two agreements negotiated between the social partners at EU level – the European Trade Union Confederation (ETUC), the Union of Industrial and Employers' Confederations of Europe (UNICE) and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP). The first was an accord on the regulation of part-time work, reached in June 1997 (EU9706131F). This agreement forms the basis of EU Directive (97/81EC) on part-time work, which was adopted on 15 December 1997. The second was an accord on fixed-term work, reached on 14 January 1999 (EU9901147F). This agreement forms the basis of EU Directive (1999/70/EC) on fixed-term work, which was adopted on 28 June 1999.

The third subject covered by the Commission's original 1995 social partner consultation – temporary work through agencies – was the most difficult of the three subjects, due to the fact that the employment relationship is a triangular one, involving the employee, the agency and the user company. Although the intersectoral social partners at EU attempted to negotiate an accord on this issue, talks eventually collapsed in May 2001 (EU0106215N). The main stumbling block was the issue of a 'comparable employee' for the purposes of equal treatment.

Shortly after the breakdown of these talks, the EU-level social partners in the temporary agency work sector agreed on 8 October 2001 (EU0110208F) a joint declaration on temporary work which they hoped would serve as a blueprint for a proposal from the Commission. However, this accord also skirted the key issue of the comparable employee. After some 10 months of suspense, the Commission finally issued, on 20 March 2002, its proposal for a Directive regulating working conditions for temporary workers.

Main points

The draft Directive contains the following main provisions:

  • the aims of the Directive are to improve the quality of temporary (agency) work by ensuring that the principle of non-discrimination is applied to temporary workers and to establish a suitable framework for the use of temporary work to contribute to the smooth functioning of the labour market. It applies to the contract of employment or employment relationship between a temporary agency, which is the employer, and the worker, who is posted to a user undertaking to work under its supervision;
  • temporary workers shall, during their posting, receive at least as favourable treatment as a comparable worker in the user enterprise in respect of basic working and employment conditions, including seniority. Any differences in treatment must be justified by objective reasons. Where appropriate, the principle of pro rata temporis should apply;
  • basic working and employment conditions are defined as
    • the duration of working time, rest periods, nightwork, paid holidays and public holidays,
    • pay,
    • work done by pregnant women and nursing mothers, children and young people, and
    • action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation;
  • in the event of no comparable worker existing, the collective agreement applicable in the user undertaking should be referred to. If there is no collective agreement, the comparison will be made by reference to the collective agreement which applies to the temporary work agency. If there is no collective agreement here, the basic working and employment conditions of temporary workers will be determined by 'national legislation and practices';
  • Member States may allow exceptions to the principle of non-discrimination in respect of temporary workers who have a permanent contract of employment with a temporary agency and who continue to be paid in the time between postings;
  • Member States may give the social partners at the appropriate level the option of concluding collective agreements which derogate from this principle 'as long as an adequate level of protection is provided for temporary workers';
  • Member States may provide that the principle of non-discrimination need not be applied where a temporary worker works on an assignment or series of assignments with the same user enterprise in a post which, due to its duration or nature, can be accomplished in a period not exceeding six weeks;
  • Member States should implement the principle of non-discrimination after consulting the social partners– they may also allow the social partners to define procedures for implementing this by means of a negotiated agreement;
  • in order to improve quality of work for temporary workers, they should be informed of any vacant posts in the user undertaking so that they have the same opportunity as other workers in the user undertaking of finding permanent employment. Member States should also remove any obstacles to temporary workers concluding a contract of employment with the user undertaking after the posting;
  • temporary workers should not be charged any fee by the temporary agency for arranging for their recruitment by a user undertaking. Further, they should be given access to the social services of the user undertaking unless there are objective reasons against this;
  • Member States should improve temporary workers' access to training in temporary agencies, even in the periods between postings, 'in order to enhance their career development and employability', and should improve temporary workers' access to the training available to workers in the user undertaking;
  • temporary workers should count for the purposes of calculating workforce-size thresholds above which bodies representing workers, provided for under both national and Community legislation, should be formed at the temporary agency. Member States may extend this, if they wish, to the calculation of such thresholds at the user undertaking;
  • the user undertaking must provide suitable information on the use of temporary workers when providing information on the employment situation to worker representative bodies; and
  • Member States should transpose the provisions of the Directive two years after its adoption.

Reactions

ETUC has welcomed the proposal: 'The Commission has shouldered its political responsibilities under the Treaty and sent a clear signal to those who want to roll back social and employment rights under the guise of modernisation through deregulation.'

UNICE has issued a statement stressing that it is not opposed to a Directive which would offer legal protection against discrimination for temporary agency workers. However, it maintains that the proposal is 'ill-conceived' and particularly objects to the fact that it uses workers in the user undertaking as comparators, allowing comparison with agency workers only if no user undertaking worker or collective agreement in the user undertaking is available for comparison. Stating that this method is 'unjustified and unnecessarily complicated', UNICE proposes that the two possibilities – using an agency worker or a worker in the user undertaking as a comparable worker – should be put on equal footing in the Directive and that Member States should be allowed to choose which comparison to make.

Commentary

The regulation of temporary work through agencies is a highly contentious area, as witnessed by the fact that the EU-level social partners could not come to an agreement on this issue. The Commission's proposal will now begin its journey through the EU's decision-making process and all those with an interest in it will monitor its progress carefully. Trade unions will be keen for the provisions not be to watered down in any way, while employers will fight to amend the comparator provisions and lengthen the maximum period of a temporary contract, currently six weeks, during which equal treatment need not apply. (Andrea Broughton, IRS)

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