the directive on temporary agency work: main provisions and implementation in the member states...

The Directive on temporary agency work:

main provisions and implementation in the Member States

Zagreb, 1 July 2013

Bertrand MULLER-SCHLEIDENEuropean Commission

DG Employment, Social Affairs and Inclusion Labour Law Unit

Overview

I. Origins of the Directive II. Main provisions III. Implementation in the Member States and

Commission report

I. Origins of the Directive

• Directive 91/383/EC: health and safety at work of fixed-term and temporary agency workers

• Agreements between European social partners on part-time (→ Directive 97/81) and fixed-term work (→ Directive 1999/70); not applicable to temporary agency work

• ILO Convention No. 181 (1997) on Private employment agencies

I. Origins of the Directive

• 2000-2001: negotiations on agency work between EU-level social partners

• 2002: Commission proposal for a Directive on working conditions for temporary workers, amended after consultation of the European Parliament

• Long negotiations in Council• Directive 2008/104/EC on temporary agency

work adopted in November 2008

II. Main provisions

• Scope (Art. 1): - Workers employed by temporary-work agency,

assigned to user undertakings to work temporarily under their supervision/direction

- Public and private undertakings engaged in economic activities; possible exemption for public training/integration programmes

II. Main provisions

• Aim (Art. 2): strikes a balance between: - Protection of agency workers and improvement of

quality of work by applying equal treatment - Recognition of agencies as employers, while

contributing to creation of jobs and development of flexible forms of working

II. Main provisions

• Definitions (Art. 3): main notions:- worker - temporary-work agency- temporary agency worker- user undertaking- assignment- basic working and employment conditions

II. Main provisions

• Review of restrictions and prohibitions (Art. 4): - Justified only if general interest, in particular

protection of workers, health and safety, ensure that labour market functions properly and abuses are prevented

- Without prejudice to national requirements on registration, licensing, financial guarantees, etc.

II. Main provisions

• Principle of equal treatment (Art. 5): - Basic working and employment conditions at least

those that would apply if recruited directly to occupy same job

- "basic working and employment conditions": binding general provisions – on p ay, working time, night work and holidays – in force in user undertaking

- Includes rules on protection of pregnant women, equal treatment for men and women, action against discrimination

II. Main provisions

- 3 possible derogations involving social partners to various degrees:

a) on pay, if permanent contract and payment between assignments: Art. 5(2)

b) collective agreements respecting overall protection of workers: Art. 5(3)c) where collective agreements cannot be declared

universally applicable, if adequate level of protection; qualifying period possible: Art. 5(4)

II. Main provisions

• Access to employment, collective facilities and vocational training (Art. 6):

- Informed of vacant posts in user undertaking- Clauses preventing recruitment after assignment

to be declared null and void - Agencies cannot charge workers any fees - Access to collective facilities – canteens, child-care,

transport services etc. – in principle under same conditions as directly employed workers

- Improve access to training, including between assignments

II. Main provisions

• Representation of temporary agency workers (Art. 7):

- Counted in agency, user undertaking or both when calculating threshold for setting up bodies representing workers

• Information of workers' representatives (Art. 8):

- User undertaking must provide suitable information on use of agency workers to bodies representing workers

II. Main provisions

• Minimum requirements (Art. 9):- Right to apply more favourable provisions /

collective agreements

• Penalties (Art. 10): - Appropriate measures if non-compliance by

agencies / user undertakings, adequate administrative / judicial procedures

III. Implementation in the Member States and Commission report

• Directive fully applicable since December 2011 (3-year transposition period), in Croatia as from accession to EU

• Member States are responsible for transposition, but social partners may introduce provisions by agreement

• By 1 July 2013, all Member States, including Croatia, have notified their national transposition measures

III. Implementation in the Member States and Commission report

• After transposition deadline/accession, Commission checks compliance of national implementing provisions and possibly launches infringement proceedings

• By December 2013, Commission will draw up and publish report on application of Directive (cf. Art. 12), in consultation with Member States and social partners at EU level:

III. Implementation in the Member States and Commission report

- Commission is assisted by Expert Group on transposition (government representatives) and social partners

- report notably on implementation of equal treatment and review of restrictions and prohibitions

- report will also consider amendments, where appropriate, notably in relation to cost issues

III. Implementation in the Member States and Commission report

More information on the website of the European Commission: http://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=207

Thank you for your attention!