Temporary agency workers to be treated as permanent staff
In January 2006 the Danish Labour Court ruled in two cases concerning the position of temporary agency workers in the relation to the user company and the temporary work agency. The judgement made it clear that temporary agency workers applied to companies in the occupational field of electricians must be treated on the same conditions as permanent staff.
The Danish Labour Court decided 11 January 2006 that temporary agency workers working in companies under the provisions of the sectoral collective agreement, the Electricians’ Agreement must be treated on the same level as permanent staff concerning pay and working conditions. The ruling concerned two cases involving the Union of Danish Electricians (Dansk El-Forbund, DEF) and Tekniq, the employers' organisation for heating and plumbing engineering and electrical installation. The electricians in question were assigned to the companies Kemp & Lauritzen A/S and Kaj Jensen A/S by a temporary work agency. In both cases the temporary agency workers did not work under the same conditions as the permanent electricians of the companies. Among other things they did not receive payment for working overtime or working on holidays. Instead they were paid in relation to a contract between the user companies and the temporary work agency.
The ruling of the Labour Court has now made it clear that the Electricians’ Agreement encompass all work made by electricians in companies covered by this agreement whether the work is done by the companies’ own permanent staff or hired temporary agency workers. In his ruling the arbitrator argued that the Electricians Agreement is a sectoral agreement, which covers all work performed for a member company within the occupational field covered by the collective agreement. This argument is strengthened by the fact that the temporary agency workers were clearly working under the management and instructions of the employer of the permanent staff - in contrast to work performed by a subcontractor. The arbitrator further stated that the user companies are liable to pay the loss of the temporary agency workers. It was the resposibility of the companies to inform the temporary work agency that work done in the companies was covered by the Electricians’ Agreement.
The electricians’ union DEF and their fellow unions under the umbrella of the Danish Confederation of Trade Unions (Landsorganisationen i Danmark, LO) naturally saw the ruling as a victory. The result of the case has binding effect in relation to tempoary agency work in the sector. The fact is, however, that in this case the court could not have ruled different because a ruling has to base itself on former rulings or settlements if any. In 2003 a similar case were taken up between the same unions about the same issue in the socalled Bravida case (DK0309101N). In this case the arbitrator stated that the temporary agency workers applied to sectoral agreement, i.e. the Electrician Agreement, for the same reasons as mentioned above: the agreement is a sectoral agreement and the right to manage and issue instructions lay with the company. When the resent case, however, was taken up in the first place it was due to the fact that the outcome of the Bravida-case was not laid down as a concret court ruling, even if it was preceded by a judge (of the Supreme Court), but as a settlement between the organisations in a protocol. Tekniq thus claimed that the Bravida case only had effect in this particular case. The ruling in January 2006 decided differently, i.e. the settlement in the Bravida case served as legal example.
This does not mean, however, that the ruling has a general effect for other sectors at the Danish labour market. As a matter of fact an arbitration in the service sector between the Union of Commercial and Clerical Employees in Denmark (Handels- og Kontoransattes Forbund, HK) and Danish Commerce and Service (Dansk Handel & Service, DHS) in 2004 stated the opposite, i.e. that temporary agency worker assigned by an agency are not encompassed by the collective agreement signed by the user company unless a specific agreement exists. This is not in contradiction with the Bravida ruling and the similar ruling of 11 January 2006 although it might seems so. The reason is that both rulings only have effect within the relevant sectors. In fact Danish temporary agency work applies to at least three large sectoral agreements. In manufacturing industry (the Industry Agreement) the working conditions of the temporary agency workers are laid down in a protocol, which states that the workers are covered in relation to the Industry Agreement whether the agency is a member of the signatory employers’ organisation the Confederation of Danish Industries (Dansk Industri, DI) or not. The service sector follows the arbitration settlement in case of HK and DHS, which means that the temporary work agency has the managerial rights in relation to the agency workers. Concerning membership DHS is by far the largest employers’ association to organise agencies. DHS has several specific organisation agreements with the unions concerning temporary agency work. Finally there is the agreement in building and construction, which by and large follow the pattern of the agreement in manufacturing industry. With the addition that in building especially the trade unions want the agreement in force also to cover workers sent by subcontractors. This is a consequence of the special situation in the building sector facing a significant problem bogus-selfemployed and of bogus-companies based in Eastern Europe, trying to circumvent the Danish transitional scheme in relation to workforce coming from the new EU member states (DK0308102F and DK0310101N)
The conclusion is that no single general provision regulates temporary agency work at national level. The sectoral context of the work is decisive, and that is, according to labour law professor, Jens Kristiansen, rather a strength than a weakness. It proofs the flexibility of the sectoral collective agreements rather than showing a lack of uniformity in the area of temporary agency work.
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