Spain: Temporary agency work and collective bargaining in the EU

  • Observatory: EurWORK
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  • Published on: 18 December 2008



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Country:
Spain
Author:
Esteban Villarejo
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Disclaimer: This information is made available as a service to the public but has not been edited or approved by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

In Spain the regulation of TAW is more tight than in other areas of temporary work. While this is very high (30.9 % of total of employment), the proportion of contracts through agencies is only 16.56% of total of temporary contracts.Since 2004, there has been some law changes, but reduced. The collective bargaining has continued developing. The present Fifth Collective Agreement contains a commitment of unions in order to avoid the inclusion in any collective agreements clauses that exclude the use of the services of the temporary employment agencies.

Section 1. Definitions

1) In your country, is there a statutory definition of:

a) temporary agency work?

Yes. Law 14/1994 (of 1st June, regulating the Temporary

Work Agencies) defines a temporary work agency (‘empresa de trabajo temporal’) as an enterprise ‘whose activity is intended to transfer hired employees to user enterprises on a temporary basis’ (art. 1).

b) agency worker?

In the same Law, the temporary agency work is defined as the workforce employed by

the temporary work agencies themselves and transferred to the user enterprises.

c) user enterprise?

There is not any definition

If yes, please give definitions.

2) Is there a collectively agreed definition of:

a) temporary agency work?

Yes. V National Collective Agreement, of 23 january 2008, define temporary agency work (‘empresa de trabajo temporal’) as ‘that whose activity consists on putting to another company user's disposition, with temporary character, workers for her hired’ (art. 2,2)

b) agency worker?

Yes. The V Collective Bargaining Agreement on Temporary Work Agencies says: ‘to the effects of the present Agreement he/she will understand each other for worker:

a) ‘Put at disposal’, that who is hired to be given to the company user in that he/she lends their services. b) ‘Of structure’, that who is hired to lend their services directly in the company of temporary character’(art. 2,3)

c) user enterprise?

There is not any definition

If yes, please give details (e.g. how and where defined).

3) In your country, would you describe TAW as a sector in its own right?

No, it is considered as a part of sector ‘Services to the enterprises’, and the workers are counted in the different sectors of user enterprises.

Section 2. Regulatory framework

1) Have there been any changes in the law concerning TAW since 2004?

a) Yes b) No

a)Yes, but reduced. Law 43/2006 included the measures agreed by the social partners in the previous Agreement for the Improvement of Growth and Employment (‘Acuerdo para la Mejora del Crecimiento y el Empleo’, AMCE) of 9 May 2006. That Agreement introduced modifications to the current legislation, aimed at stimulating permanent recruitment and reducing temporary employment. It includes measures to limit the abuse of temporary recruitment and avoid chains of successive temporary contracts for the same job.

Law 32/2006, of 18 October, governs subcontracting in the construction sector. The aim is to reduce the industrial accident rate, that is related to the high volume of temporary employment and to immigration. Consequently the use of TAW is limited.

The new Public Sector Contracts Law, 30/2007, maintains the limitations on recruitment through temporary employment agencies. The Basis Public Employment Statute (Law 7/2007) already includes several flexible formulas for temporary recruitment that make the use of TAW unnecessary.

2) How is TAW regulated in your country?

a) Is there a legal framework specifically for TAW; and/or is it covered by general labour law (including case law/ jurisprudence)?

Temporary employment agencies (‘empresas de trabajo temporal’, ETTs) were first authorised and regulated in Spain by law 14/1994. Previously some companies hired out workers, but without legal recognition. Royal Decree 4/1995, of 13th January, develops the Law 14/1994.

This one was amended by law 29/1999, which provides that agency workers must receive the same pay as the employees of the user companies. It also introduces a number of new developments in the information field. The new law also prohibited the use of agency workers in certain situations.

Law 45/1999 of 29th November, regulates the displacement of workers within

the framework of a transnational provision of services

Royal Decree 216/1999, of 5th February, regulates minimum provisions on security and health at work issues within the scope of Temporary Work Agencies

b) What is the role, if any, of collective labour agreements and self-regulation?

The role of collective agreements is quite high. The role of self-regulation is very reduced, due to great regulation of the sector. Concerning collective agreements, until now there has been five. They have developped the law, and at the time contains a commitment of unions in order to avoid the inclusion in any collective agreements clauses that exclude the use of the services of the temporary employment agencies.

3) What is regulated in these provisions? In particular, does it cover:

a) use of agency work (e.g. length of assignment, sectoral bans, permitted reasons of use, number of agency workers per company, other)

Law 14/1994 establishes that temporary work agencies have to fulfil a number of conditions, such as special administrative permissions, availability of a minimum organisational structure, solely involvement in temporary work activities or fulfilment of salary and Social Security obligations.

Law 29/1999 foresees three main reasons for the ‘transfer’ of workers:

-To carry out an specific service or work, where the ‘transfer’ is only possible until the service or work is over.

-To attend circumstantial market needs or to satisfy excess of orders or accumulation of work.

-To substitute employees with a right to job reservation.

b) the form of the contract (e.g.project, fixed-term, special contract, open ended, etc.)

Law 14/1994 established several conditions, such as special administrative permissions. Contracts must be in writing.

c) social security and social benefits

The Law 14/1994 established the need of fulfilment of salary and Social Security obligations.

Law 29/1999 disposes that the hiring temporary work agency is responsible of the recruitment, training and remuneration of the ‘transferred’ workers (art 12 of Law 29/1999). TAW must invert no less than 1% to training, and 0,25 % additional to training on risk prevention.

Any transferred employee has to receive an economic compensation of 12 working days per worked year when the ‘put at disposal’ contract is finished, provided that this contract is for a determined time duration.

d) conditions to open a TAW agency (e.g. license or authorisation schemes, supervision by public authorities, financial requirements, or others - please specify)

The Law 14/1994 establishes that temporary work agencies have to fulfil a number of conditions for carrying out their activities, such as special administrative permissions, availability of a minimum organisational structure, solely involvement in temporary work activities or fulfilment of salary and Social Security obligations.

e) business activities/services delivered by TW agencies (e.g. prohibition to provide other services than TAW)?

Law 14/1994 expressly establishes that agencies solely can implicate in temporary work intermediation and connected activities

f) third-national companies or temporary agency workers (e.g. activities of foreign agencies)?

The agencies must accomplish several formal conditions in the country, independently of its origin.

4) Do any regulations (by law and/or collective bargaining in the TAW sector) specify equal treatment rights for agency workers with permanent workers in the user enterprise concerning:

a) payb) trainingc) other terms or conditions of employment?

Law 29/1999 provides that agency workers must receive the same pay as the employees of the user companies. Other dispositions have extended the equality of treatment, and the activity of inspectorate.

The same law impose to agencies the need for investing, at least, 1% of the total salary volume in training activities. The Third Collective Bargaining has added an additional request of 0.25%.

However, the working conditions amongst the TAW employees are, in general, worse than in common working relations. Additionnaly the employment of temporary work (mainly young, low skilled and temporary people) does not favour the presence of trade unions.

5) Do TAW workers have the right to information, consultation and representation?

Agency workers have representation rights in their temporary employment agency, and not in the companies in which they actually work

6) Is there a control/enforcement mechanism regarding any TAW regulation?

If yes,

a) is there a special labour inspectorate or a bi-partite body governing TAW?

There is a specialised labour inspectorate.

b) are there any sanctions/penalties for not respecting the regulations (whether stemming from law and/or collective agreements)?

Yes, there are differente sanctions.

7) Are there any procedures governing use of TAW and strike breaking?

In particular, can workers on strike be replaced by agency workers?

Workers on strike can’nt be replaced by agency workers. Law 29/1999 foresees only three main reasons for the ‘transfer’ process (art. 7), and inmediately states several situations that no permits "transfers". One of these is ’to substitute user enterprise’s employees on strike’ (art 8):

Section 3. Social dialogue and collective bargaining

1) Is there any employers’ association(s) for TAW firms in your country?

If yes, please provide any data on membership (e.g. sectoral coverage of firms/workers)

The employers' associations of the sector are: National Association of Temporary Employment Agencies (‘Asociación Estatal de ETTs’: AETT); Spanish Federation of Temporary Employment Agencies (FEDETT); and Association of Big Agencies of Temporary Work (‘Asociación de Grandes Empresas de Trabajo Temporal’; AGETT). This one comprises the six largest enterprises in the sector, as well as their subsidiary companies, and was created as a split from AETT. AETT groups 72 small and medium enterprises, and FEDETT around 70, in general smaller. All are members of great confederation of enterprises, CEOE

2) Is there any union(s) specifically for agency workers?

If no, have any unions or confederations targeted the recruitment of agency workers? launched any campaigns around agency workers’ rights?

There are not specific unions for agency workers, but great confederations and several federations have launched campaigns in favour of agency workers’ rights, and defend their interests.

3) Collective bargaining levels

Is TAW governed by collective bargaining at:

a) intersectoral/ national level?

Up to now there has been five Collective Bargaining Agreements on Temporary Work Agencies. That agreements are intersectoral and national, and compatible with others at level of the Autonomous Communities.

Furthermore there has been regulations that includes agreements. For example, Law 43/2006 includes the measures agreed by the social partners in the Agreement for the Improvement of Growth and Employment of 9 May 2006.

The concern of social partners to foster employment security has been a constant subject in the social dialogue in the last decade, mainly though great tripartite national agreements. The social partners agree that employment security must be a priority objective in collective bargaining, though companies require a framework of temporary recruitment that allows them to adapt to the market situation. They share that the most effective way to achieve flexicurity is to use internal mechanisms of qualitative flexibility rather than external adjustments of employment.

b) the sectoral level for TAW?

As said, up to now there has been five Collective Bargaining Agreements on Temporary Work Agencies. There has been a will to strengthen the bargaining at a nacional level.

c) company (ie. temporary agency firm) level?

In formal sense, no, due to the will to strengthen the negotiation at a nacional level. But there are internal agreements

If yes, please provide details of the parties concerned.

4) Collective bargaining outcomes

Please provide examples and details of any recent/ significant collective agreements governing TAW at the levels referred to in question 3.

Fourth National Collective Bargaining Agreement on Temporary Work Agencies included an updating of wages, a reduction in

annual working times, the setting up of a collective insurance intended to cover any possible contingency derived from working accidents and the definition of several professional categories. included improvements for 'structural' staff employed directly by temporary employment agencies.

Fourth and Fifth Collective Agreement contained a commitment of unions in order to avoid the inclusion in any collective agreements clauses that limit, hinder, prohibit or exclude the use of the services of a temporary employment agency. Furthermore, both parties accept that there is no need for extra social security contributions by temporary agencies, because this would involve discrimination in comparison with direct temporary recruitment.

V National Collective Agreement has been signed at 2007. It is influenced by another agreement: the oriented for the Improvement of Growth and Employment of May 2006. This one aimed to a model of stable growth based on improving productivity and social cohesion.

In Fifth Collective Agreement is applied the Gender Equality Law to collective bargain.

5) Are there any examples of sector- or company-level collective agreements in other sectors that restrict, permit or otherwise regulate the use of TAW within their domain?

In different collective bargaining agreements there are some rules about TAW, mainly:

- Wage equalisation between the ‘transferred’ TAW workers and the personnel employed by the user enterprises, along with equality in terms of some other employment conditions. For example, a number of agreements provide for equality in terms of non-wage items, such as compensation for termination of contract (eg in the case of the agreement for the ceramics industry in Castellón).

- Some agreements provide preference in recruitment for agency workers who have previously worked in the company (as at CC Valeo Iluminación SA).

- Rejection of TAW hiring, or recommend other forms of direct recruitment.

- Limit of the number of agency workers in the workforce, often restricting such contracts to a maximum proportion of the workforce (between 5% and 12%, according to the size of workforce);

- Support of the ‘working contract’ (to a determined outcome) in order to avoid the hiring of workers through temporary work agencies.

- Delimitation of the maximum period for hiring any ‘transferred’ workers from temporary work agencies. After that period agency workers are automatically taken on as employees of the user company on open-ended contracts;

- Limitation of TAW hiring to certain situations, such as temporary production needs, or lay down specific circumstances for their use, such as to cover unforeseen absences, sickness due to temporary incapacity, unforeseen orders and overtime, sometimes adding that the use of agency work is 'always an exception'.

- Some agreements provide for workers' representatives to exercise greater control over this form of recruitment.

- Several collective bargaining agreements admit this type of hiring without any limitations.

6) Please provide any data concerning:

a) trade union density for agency workers

There is no data available. One of the hypotheses often expressed against TAW is that facilitates the exclusion of syndicated workers.

b) the coverage of collective bargaining within the sector.

Due to labour rules at Spain, collective agreements obligate all the enterprises

Section 4. Employment and working conditions of TA workers

1) Please provide the most recent data (averages) on TAW employment

a) longevity of TAW employment, i.e. how long workers remain employed

- in the sector?

There is not data available.

- with a particular agency?

There is not data available.

b) duration of TAW placements, i.e. i.e. the length of assignment in a user company.

There are not accurate data. As shows the Journal of Labour Statistics of Ministry of Labour and Inmigration (mai 2008), at 2007 there were 2,853,330 contracts of ‘put at disposal’ and 1,880,970 workers affected. So there were 1.52 contracts for worker.

2) Please provide any evidence from official, academic and social partner sources concerning:

a) the reasons for user companies’ usage of TAW, including any differences by sector, occupation, firm size etc.

According to Journal of Labour Statistics of Ministry of Labour and Inmigration (May 2008), at 2007 there were 2,853,330 contracts of ‘put at disposal’. Of those, 1,341,038 were to attend circumstantial market needs or to satisfy excess of orders or accumulation of work; 1,166,547 to carry out an specific service or work; 118,025 to substitute employees with a right to job reservation; and 27,720 of interim while a selection process. Parallelly, the surveys show that reasons for hiring agency workers were to replace absent employees, to supplement a firm’s labour force, to bring in structural flexibility and to recruit new personnel; all this avoiding recruitment and administration expenses.

The resource to TAW is high in sectors with great variations of demand, as hotels and restaurants, automobile, or food and drink; periodic needs of workers, as the promotion of financial services, publishing or chemicals; or new needs, as in communications. There are any cases more problematic, as wholesaling. In general there has been a gradual increase of the proportion of qualified people, with specific skills.

b) reasons for workers participation in the sector and levels of satisfaction, including any differences by age, sex, education etc.

There is no recent surveys. Last studies showed that reasons for being agency worker are diverse: to find a permanent job (stepping stone function), to know possible employers, to gain work experience and increase employability, to work in a dynamic environment, and to harmonise work with other life spheres. A high proportion of temporary agency workers are unhappy with their jobs and conditions, but about a third expresses preference for agency work

3) In practice, which rules and procedures may apply to temporary-agency workers in contrast to other workers in the user company?

The regulation of pay and other specific conditions mainly affects to ‘structure’ workers of TAW, but labour law protects workers in the user enterprises. Occupational health and safety issues are strictly regulated by the Spanish legislation on the topic.

(i.e.notwithstanding national regulation), any indicators of principal forms of differential treatment or parity with permanent workers in the user enterprise (e.g. over pay, working hours, pensions, fringe benefits, consultation and representation, training, social and health care, access to housing, access to credits/loans).

Section 5. The extent and composition of TAW.

1) For 2004 and 2007, please state

a) the number of agency workers

As shows the Journal of Labour Statistics of Ministry of Labour and Inmigration (mai 2008), at 2007 there were 2,653,330 contracts of ‘put at disposal’ and 1,880,970 workers affected. At 2004 they were 2,209,477 contracts and 1,545,149 workers.

The registered contracts by INEM at 2007 were 2,714,584. At same time, the number of total registered temporary contracts were 16,396,617. So, the ratio of contracts through agencies was 16.56 of total of temporary contracts. The six great agencies grouped at AGETT had a quota of 47 %.

b) total revenues of the TAW sector

There is not data available

2) What proportion of the TAW workforce is currently

a) male/ female? 2007 Total <=17 >17<=24 >24<=29 >29<=39 >39<=44 >=45

There is’nt data available

b) full/part time?

At 2007, the full time registered contracts were 2,040,015 workers, so 75.1 % of total TAW. And part time 674,579, that is 24.8 % of total TAW workers

c) young (<c. 25) or older (>c. 50) workers?

Existing figures are: of<25, 925,263, so 34.1 % of total of TAW workers. And >45, 237,140 workers, that is 8.7 % of total TAW.

3) Has there been any changes to the TAW sector in terms of

a) concentration, i.e. proportion of employees or turnover accounted for by the largest firms?

At 1998 there were 435 agencies, but the imposition of harder conditions at 1999, provoked a decrease of that number up to 326 at 2003. Since then the volume of agencies has increased, up to 371 at 2007.

The six bigger firms, grouped in AGETT, have a quota of 47 % of the contratas of “put at disposal”.

b) internationalisation, i.e. number/significance of multinational TAW firms?

There is not data available

4) What is your evaluation of the availability and quality of statistical data concerning TAW in your country?

It seems quite reliable, due to formalities required for the contracts.

Commentary by the NC

Employers see TAW as a necessary element in labour flexibility, and therefore is positive for employment. This includes a qualitative dimension: TAW enlarge the opportunities to certain workers and facilitates the access to regular employment.

On the other hand trade unions have traditionally seen TAW as a threat.They have pointed out the poor conditions, job insecurity and exclusion from occupational benefits, training and career development. But unions tend to accept it as a fact, and concentrate on pressing for better regulation and/or coverage by collective agreements.

Social partners observe a trend in EU-level regulation in favor of employees. It worry unions, but they see that TAW is not the only type of three-way relationship between an employee and two employers, and agency work only affects to a minor part of temporary employment. It’s true that TAW has facilitated a certain substitution of stable work, but this kind of contract has any functionalities that no have other kinds of temporary work.

Esteban Villarejo, CIREM

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