Temporary agency work negotiations break down
Talks between the European-level social partners over an agreement on temporary agency work appeared to have broken down at the end of March 2001. The parties to the negotiations failed to agree on the issues of the conditions of recourse to temporary agency work and of equal treatment between temporary agency workers and user company employees.
Negotiations between the central European-level social partners – the European Trade Union Confederation (ETUC) the Union of Industrial and Employers' Confederations of Europe (UNICE)/European Association of Craft and Small and Medium-sized Enterprises (UEAPME) and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) – over a possible agreement on temporary agency work have been underway since UNICE agreed to open talks in May 2000 (EU0005245N). Temporary agency work is the third and final subject to be discussed by the social partners under the umbrella of the European Commission's original 1995 social partner consultation on the broad issue of "atypical work". This consultation has so far yielded the 1997 agreement on part-time work (EU9706131F) and the 1999 agreement on fixed-term contracts (EU9901147F), both of which were subsequently implemented by EU Directives.
The temporary agency work negotiations were designed to complete regulation in the "atypical work" area. However, this issue was always deemed to be the most complicated and controversial, due to the triangular relationship which exists between the temporary employment agency, the user company and the temporary worker. The talks did indeed prove to be difficult and in March 2001, after more than nine months of discussion, ETUC announced that there was a stalemate in negotiations
ETUC maintained that the main obstacles to an agreement were the issues of equal treatment between temporary agency workers and user company workers and the conditions under which employers should have recourse to temporary agency workers, in order to prevent abuse. It thus asked UNICE for a "necessary signal" on these two issues in order to allow a relaunch of negotiations. The UNICE council of presidents, meeting on 21 March, decided in favour of continuing negotiations on temporary agency work and stated that an agreement "should be possible if trade unions are prepared to compromise". It claimed that UNICE had offered legal protection against discrimination, with regard to all conditions of employment, for temporary agency workers from the outset of negotiations. However, flexibility should be preserved when deciding with whom temporary agency workers should be compared - a worker in the user company or a worker in the same temporary work agency. UNICE accepts that the comparison should be made with the user company for health and safety conditions and maximum working time or minimum rest periods. However, the employers believe that "ETUC?s insistence that the comparable worker in the user company should be the first point of reference for other employment conditions is unjustified. Member States, through legislation, or social partners, through collective agreements should decide who the reference should be."
With regard to the prevention of abuse, UNICE stated that "in a spirit of compromise", it was prepared to include a clause whereby Member States may ban or limit temporary agency work in specific sectors or activities for specific reasons, provided that such limitations are regularly reviewed to check if they are still justified. "We are prepared to continue negotiations on this basis but UNICE will not be an accomplice to establishment of a system damaging employment. This would be contrary to the Lisbon objectives" (EU0004241F), concluded the UNICE president, George Jacobs.
On 22 March, the ETUC executive committee stated that it had not received the necessary signals from UNICE and that the negotiations had thus broken down. It claimed that UNICE?s declaration of the previous day "might give the impression of offering a more open perspective, but underneath the employers? position remains unchanged". For example, with regard to UNICE's statement that it can accept equal treatment with comparable workers in the user enterprise as regards health and safety, ETUC points out that there is already an EU Directive (91/383/EEC) on this issue. Similarly, on the conditions of recourse to temporary agency work and prevention of abuse, ETUC claims that UNICE can offer only a proposal based on an existing clause from the International Labour Organisation (ILO) Convention No. 181 on private employment agencies, which does not prevent abuse in the same way as provisions already accepted by employers in the 1999 agreement on fixed-term work.
ETUC concluded that "UNICE has obstinately refused the different proposals made to the employers during the negotiations aimed at finding a compromise which would guarantee temporary agency workers a real clause on non-discrimination and give protection against the abuse of this form of work, on the pretext that these would be prejudicial to employment." ETUC thus called on the Commission to draw up a proposal for a Directive temporary agency work.