National Commission on Human Rights criticises temporary agency work
A decision of Greece's National Commission on Human Rights, issued in September 2002, recommends the re-examination of the institution of 'leasing' employees through temporary work agencies. The decision questions the constitutionality of the recently created legislative framework for temporary work agencies and proposes measures for the effective monitoring of the existing legislation by the competent bodies.
The National Commission on Human Rights (EEDA), in a decision taken on 4 July 2002 and published on 19 September 2002, recommends that the institution of 'leasing' employees in Greece be re-examined. The decision questions the constitutionality of the recently created legislative framework for temporary work agencies and proposes measures for the effective monitoring of the existing legislation in this area by the competent bodies.
According to the EEDA decision, in effect the 'business activity' of 'temporary employment agencies' operates at the expense of the basic human rights emanating from Article 23 - and potentially from Article 4 - of the United Nations Universal Declaration of Human Rights, and that this form of employment is a gross violation of the 'personality' of leased employees which goes contrary to Articles 2.1 and 22 of the Greek Constitution regarding protection of the personality and work. As a result, the constitutionality of the articles of the 2001 law on temporary agency work (2956/2001) is called into question (GR0111101F).
In particular, with regard to the existing legislation, it should be noted, states EEDA, that despite the guarantees afforded by the relevant articles of Law 2956/2001 (GR0102198N) regarding the labour, social insurance and trade union rights of leased employees, in practice the law cannot be enforced, mainly due to the nature of this form of employment which does not enable employees to claim their legal rights, owing to their absolute dependence on the 'direct employer' (ie the agency). At the same time, the EEDA points out the following shortcomings in the legislation:
- the law in question contains no provision that in the case of 'concurrency' of collective agreements applying to the staff of an indirect employer (ie the user company) the principle of the most advantageous regulation will apply to the employees leased to that employer;
- no provision is made to enable employees on lease from temporary work agencies to form their own trade unions or sectoral federations. This makes it impossible for them to exercise the right to organise in trade unions provided to them by the Constitution, because they are usually excluded from membership of the unions covering 'permanent' employees working for their indirect employer. This is due either to arbitrary acts on the part of the employer and threats to place them on a 'black-list', thereby running the risk of not having their contract renewed, or to prohibitions emanating from the statutes of trade unions, which may offer membership only to permanent employees of the indirect employer; and
- leased employees are not afforded the right of enjoying the full employment status afforded to permanent workers in the indirect employer’s enterprise, which emanates not only from collective agreements but also from works rules or company customs.
In the framework of these remarks, the EEDA recommends that the competent state bodies re-examine the advisability of the existence of leasing employees. However, with regard to the existing legislative framework, it also points out the inability of the state monitoring mechanisms - the Corps of Labour Inspectors (SEPE) (GR0102100F) - to enforce the relevant regulations. It thus makes the following proposals:
- full, effective staffing of the SEPE with skilled employees to meet effectively the needs of the whole country;
- a guarantee of the independence of labour inspectors in the face of any change in the government or external influence, for the purpose of ensuring the irreproachability of their actions regarding the verification of complaints or ex officio interventions;
- legislative provision for substantive cooperation of the SEPE with other state services, as well as with the competent trade union organisations, wherever and whenever required for meeting its objectives;
- assignment of investigatory duties and powers to the SEPE, so that it can more effectively exercise its competences;
- an obligation on the employer or its representative to appear upon invitation by an inspector, with provision for administrative and penal sanctions in the event of refusal, as well as the ability to force the employer to appear in the event that it is liable for 'disturbing the work climate'; and
- provision for adequate monetary compensation for labour inspectors, in accordance with the independent form of the SEPE, for the permanent readiness imposed on them for necessary interventions, which are often outside their legal working hours.