the directive on temporary agency work: main provisions and implementation in the member states...
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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
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Overview
I. Origins of the Directive II. Main provisions III. Implementation in the Member States and
Commission report
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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
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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
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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
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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
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II. Main provisions
• Definitions (Art. 3): main notions:- worker - temporary-work agency- temporary agency worker- user undertaking- assignment- basic working and employment conditions
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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.
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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
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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)
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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
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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
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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
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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
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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:
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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
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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
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Thank you for your attention!