EESC gives Opinion on draft temporary agency work Directive

At its plenary session in September 2002, the European Economic and Social Committee (EESC) issued its Opinion on the European Commission's proposal for a Directive regulating working conditions for temporary agency workers.

The European Commission issued a proposal for a Directive on working conditions for temporary (agency) workers in March 2002 (EU0204205F), seeking to ensure equal treatment for temporary agency workers and comparable workers in a number of areas. This followed the breakdown of negotiations between the EU-level social partners on this issue in May 2001 (EU0106215N).

In accordance with Article 137 of the Treaty establishing the European Community (TEC), the Commission consults with a number of EU institutions on its social policy proposals, including the European Economic and Social Committee (EESC). The EESC brings together representatives of economic and social interest groups in the Member States, divided into employees', employers' and 'various interests' groupings (EU9901145F).

Accordingly, the EESC has considered the temporary agency work draft Directive and, during its plenary session on 18-19 September 2002, adopted - by 83 votes in favour, 75 against and 12 abstentions - a formal Opinion on the proposal.

The EESC makes a number of suggestions for revision of the Commission’s proposal, including the following:

  • for reasons of consistency, the title should read 'working and employment conditions for temporary workers';
  • it should be made clear in the text that the commercial contract between the agency and the user company should not conflict with the provisions of the Directive;
  • there should be a distinction between public enterprises and public administrations, given that in some countries, public administrations are not allowed to recruit staff on temporary contracts;
  • when referring to seniority, the seniority of the temporary agency worker in their occupation should be taken into account in addition to their qualifications and skills (the Directive talks of 'seniority in the job'). The EESC argues that this is because when agencies recruit temporary workers, they make their recruitment choice based on the work certificates submitted by the temporary worker. The EESC argues that if previous experience in the occupation or area of activity of the temporary worker is not taken into account, this constitutes a basic inequality of treatment deriving from the status of temporary worker, which could be rectified by the social partners and Member States if the Directive were to direct them to do so;
  • although Article 137 of the TEC allows Member States to regulate their own basic social protection and pension rights, the EESC points out that, in the case of temporary agency workers, these rights are basic working and employment conditions, both in terms of qualifying for these rights and in terms of piecing together job histories to gain access to these rights. It feels that Member States should be urged to take supplementary measures to adapt their social security systems to this form of working so as to ensure equal treatment, as discrimination stems from factors such as thresholds and conditions for entitlement to unemployment benefits and payment of social security contributions; and
  • although the TEC does not allow the Directive to place a formal ban on using temporary agency workers to replace those involved in a collective dispute, the EESC points out that there is a voluntary commitment on the part of some agencies not to post temporary workers to replace those involved in collective action. Some Member States have also introduced such a ban in their national legislation. It therefore states that the Directive should at least contain a provision ensuring that the national right to strike is not undermined, possibly by allowing Member States and/or the social partners to introduce regulations ruling out the use of temporary agency workers in undertakings where workers are on strike.

Non-discrimination

The EESC reserves most of its criticism of the draft Directive for its provisions relating to non-discrimination. The principle of non-discrimination, contained in Article 5 of the proposal, is dealt with at length by the EESC. It states that it endorses the principle of non-discrimination, but stresses that it believes that the derogations provided for in Article 5 'effectively cancel out this principle of non-discrimination'. In particular, the derogation stating that Member States may exclude temporary agency workers from the principle of non-discrimination if they are engaged on assignments of less than six week’s duration is criticised by the EESC, which states that this 'in fact excludes the majority of temporary workers from the purview of the principle of non-discrimination and introduces a criterion of duration which is in itself discriminatory and in contradiction with the principle of non-discrimination'.

Also, the EESC suggests that the derogation stating that Member States may exempt temporary agency workers from the principle of non-discrimination if they have a permanent contract of employment with a temporary agency and continue to be paid in the time between postings should apply only to pay, and on condition that the workers concerned receive a level of payment between postings which is in line with that laid down by collective agreement and/or legislation.

The EESC reinforces these points by stating in its concluding remarks that 'the principle of non-discrimination in relation to a comparable worker in the user undertaking, which is fundamental, is in danger of being eroded by the derogations the draft allows, specifically in Article 5(4), concerning temporary workers who complete assignments with a user undertaking over a period not exceeding six weeks. The Committee fears that, in some countries, this derogation will have the effect of depriving temporary workers of the protection afforded by the principle of non-discrimination in relation to comparable workers in the user undertaking.'

Appendix to the Opinion

An amendment, which obtained at least one-quarter of the votes cast, but was rejected during the discussion, is attached to the Opinion as an appendix. The proposed amendment states that the Commission’s proposal 'constitutes a poor compromise' between ensuring the legal safety of temporary agency workers and boosting the employment potential of this sector. It feels that the principle of non-discrimination can be effectively applied only by placing responsibility with the Member States and allowing them the option to implement it either in relation to a comparable worker in the user undertaking or in relation to a comparable worker in the temporary agency. The appendix cites the specific nature of temporary agency working - stemming from a triangular relationship between the agency, the worker and the user company - as the reason why Member States should be allowed a degree of autonomy in how to implement the principle of non-discrimination.

Commentary

The Opinion of the EESC will doubtless prove useful to both the Commission and the Council in their current deliberations. As ministers were told at the 8 October 2002 (EU0210203F.) employment and social policy Council meeting, work on this dossier is progressing. Issues such as the comparable worker and the general principle of non-discrimination are of particular importance. Some or all of the points made in the EESC Opinion will, therefore, no doubt be taken on board during the debate in the months ahead. (Andrea Broughton, IRS).

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