Temporary agency work
Directive 2008/104/EC on temporary agency work defines a temporary work agency (Article 3.1b) as:
any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction
The Directive also defines a temporary agency worker (Article 3.1c) as:
a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction
The Directive defines a user undertaking (Article 3.1d) as:
any natural or legal person for whom and under the supervision and direction of whom a temporary agency worker works temporarily
The Directive defines a temporary work assignment (Article 3.1e) as
the period during which the temporary agency worker is placed at the user undertaking to work temporarily under its supervision and direction
The basic common feature of all agency work is a ‘three-way relationship’, sometimes called a triangular employment relation, between a user undertaking, an employee and an agency.
Temporary agency work is increasing rapidly in almost all European countries, as part of the general movement towards increased flexibility in employment. It is estimated that over three million workers in the EU are currently temporary agency workers and the numbers involved in this sector have been increasing. A large proportion of temporary agency work is done by low-skilled workers, although many assignments are also for skilled technical and professional positions. The degree of regulation of agency work by Member States ranges from very strict to very flexible, from legislative regulation to regulation by collective agreement or even codes of conduct. Regulation of the employment relationship in agency work engages not only the employer and employee, but also the third party user of the services provided by the agency and by the employee.
It should be noted that EU regulation of transnational agency workers already exists in the form of Directive 96/71/EC, concerning the posting of workers in the framework of the provision of services. In practice, this Directive covers the transnational posting of temporary agency workers, and requires that the basic working and employment conditions in force in the host country have to be applied to both national and posted workers, if the latter are employees of an undertaking established in another country.
The social partners launched a social dialogue at the end of the 1990s with the aim of reaching a framework agreement on the regulation of temporary agency work in the European Union. However, in May 2001, the negotiations ended in failure. In March 2002, following the breakdown in negotiations between the social partners, the European Commission adopted a proposal for a Directive on Temporary Agency Workers. The proposal set out the general principle of equal treatment, under which temporary agency workers would receive the same pay and basic working conditions as permanent workers carrying out the same or similar jobs in the company to which they are assigned. However, despite a major revision of the text of the proposed Directive in November 2002, another attempt in June 2003 in the Council of Ministers to achieve a consensus paving the way for the proposed Directive to progress though the legislative procedure failed. It was not until 2008 that the conclusion of two key agreements by the social partners finally created the conditions for adoption of the Directive by the European Parliament.
The first of these was a joint agreement on equal treatment for temporary agency workers in May 2008, concluded between social partners and the government in the United Kingdom. This provided for a 12-week opt-out from the provisions of any forthcoming EU Directive, with respect to UK agency workers, but otherwise favoured adoption of the Directive. The second was a joint declaration on the Directive signed, also in May 2008, by the social partners at European level – Eurociett, the employer organisation representing agency work in the EU, and UNI-Europa, the trade union. This supported the regulation of the industry by means of a Directive and favoured the adequate protection of agency workers, while acknowledging the positive role that agency work could play in the labour market to fulfil the requirements of the Lisbon Strategy.
Following these two events, the European Parliament voted in favour of the Directive in October 2008 and EU Directive 2008/104/EC on temporary agency work came into force on 5 December 2008. Member States had three years to transpose its provisions into national law, ie by 5 December 2011.
The Directive has the following main objectives:
- equal treatment for agency workers, as regards employment status and security from the first day of employment, unless there is social partner derogation (Article 5);
- to allow Member States, following consultation with the social partners, to conclude collective agreements which derogate, within limits, from the principle of equal treatment, either by collective agreement or, in specific circumstances, by agreement between the national social partners (Article 5);
- respect for established social standards in user firms through equal treatment as regards pay and conditions;
- recognition of the temporary agency sector as a legitimate and professional business, by removing unnecessary restrictions and permits or bans (Article 4).
This Directive applies to workers (with a contract of employment or employment relationship with a temporary work agency) who are assigned to user undertakings to work temporarily under their supervision and direction. It applies to public and private undertakings that are temporary work agencies or user companies.
All temporary workers should have the right to basic protection from the first day of employment in the user undertaking, together with the right to benefit from labour law, equal pay and social protection available to directly employed workers. Pay is specifically included (Article 3). The Directive also provides the right to representation (Article 7).
The principal benefits the Directive will provide are:
- the right of agency workers to be informed about permanent employment opportunities in the user undertaking (Article 6);
- equal access to collective facilities in the user enterprise;
- improved access to training and childcare facilities in periods between assignments, to enhance employability.
The Directive also requires that Member States review and justify, on the grounds of general interest only, any existing restrictions or prohibitions on the use of agency work. The Member States must also report on what position it has adopted to the European Commission.
The Directive provides that Member States may authorise the social partners, by means of collective agreements, or in specific circumstances by agreement between the national social partners, to establish working conditions which deviate from this principle, provided that an adequate level of protection is ensured.
On 5 December 2011, the Directive’s implementation date, Eurociett issued a statement concerning the transposition of the Directive, noting that a number of Member States were not on course to meet the transposition deadline, including Belgium, Greece and Italy. Eurociett also expressed concerns that, in its view, there has been an imbalance in implementation, with the equal treatment provisions of the Directive transposed into national law, but the lifting of restrictions on agency working still outstanding. However, Eurociett also noted that France, Romania and Spain had removed sectoral bans on temporary work, France and Italy had extended the range of contracts that can be offered by temporary work agencies and Romania and Poland had increased the maximum length of agency work assignments. UNI-Europa is also monitoring the situation, and has expressed concerns about possible abuses, noting that Article 5.1 of the Directive allows for a qualifying period before the principle of equal treatment is applicable, on the basis of a national social partners’ agreement; it also permits derogations and flexibilities for agency workers on permanent contracts of employment who are paid between assignments. Uni-Europa states that there is some evidence of temporary agencies employing workers on permanent contracts, thus making them permanent employees of the agency and exempt from the equal treatment requirements of the Directive.