Agency Workers: Are They Sufficiently Protected Past Times Eu Law?

Steve Peers

'Atypical' workers (those workers who create non create got a full-time permanent contract) are frequently inward a real vulnerable seat inward the labour market, in addition to and then are perhaps land of study to exploitation. The job of such forms of job mightiness also undercut other workers. On the other hand, on around occasions such job does adapt the needs of both workers in addition to employers, in addition to constitutes an of import shape of task creation. To strike a residuum betwixt these 2 principles, the European Union has adopted measures to regulate 3 specific categories of atypical workers: way workers, part-time workers in addition to fixed term workers.

The rules governing way workers are laid out inward a Directive adopted inward 2008, which Member U.S.A. had to apply yesteryear Dec 2011. Today, the Commission released its report on the application of this Directive. To what extent is the Directive achieving its parallel objectives of ensuring that way workers are protected, while also encouraging task creation?

Basic issues

First of all, the Directive does non apply to employers who are non conducting 'economic activities' (the Commission interprets this to hateful employers not selling their service for remuneration). Also, Member U.S.A. may exclude from its orbit those workers inward a particular task creation scheme. The Commission reports that most Member U.S.A. create non apply these exceptions; those which create create got correctly applied them.

As for the definitions inward the Directive, exclusively i Member State has specified that the temporary piece of work way must locomote considered the employer. This is definitely the right interpretation of the Directive, in addition to then it is unfortunate that no to a greater extent than Member U.S.A. create got made this clarification.

Worker protection

The fundamental dominion equally regards employee protection is the regulation of equal handling for working conditions. Here the Commission has around doubts almost around Member States' rules requiring a 'comparable employee', whereas the Directive refers to the 'same job'. But this shape of transposition is sure fine equally long equally employers in addition to (if necessary) courts recognise that a worker doing the same task inward the user labor is always a comparable employee.

However, at that spot are derogations equally regards equal treatment. First of all, temporary workers mightiness non locomote entitled to equal pay if they are paid yesteryear way betwixt assignments, in addition to create got a permanent contract amongst the agency. Only 5 Member U.S.A. job this derogation. In several cases, workers are entitled to exclusively one-half of their previous pay (subject to the national minimum wage equally a floor). The Commission raises around doubts almost this, but says exclusively that it volition handgrip farther discussions.

Secondly, temporary workers tin have equal handling pursuant to a collective agreement, if that understanding 'respect[s] the overall protection' of temporary workers. Ten Member U.S.A. apply this rule, in addition to the Commission does non believe at that spot is whatever job amongst its application. While it mightiness to a greater extent than frequently than non locomote assumed that unions tin defend the interests of workers, it is possible inward regulation that inward around cases they create got prioritised the interests of permanent workers instead, or are inward a weak bargaining seat in addition to and then create got accepted price that create non observe temporary workers' protection.

Thirdly, inward U.S.A. where collective agreements are non to a greater extent than frequently than non applicable, at that spot tin locomote a derogation from the regulation of equal treatment, provided over again that 'the overall protection' of temporary workers is respected. This mightiness include a qualifying period, in addition to mightiness specify that employer pensions are non included inside the orbit of the equal handling rule. Only the UK of Britain in addition to Northern Republic of Ireland in addition to Republic of Malta apply this rule. The UK of Britain in addition to Northern Republic of Ireland provides for a 12-week waiting period, piece Republic of Malta disapplies equal handling for the starting fourth dimension iv weeks (if the assignment is longer than fourteen weeks). Both Member U.S.A. exclude employer pensions from the equal handling rule.

The derogations are land of study to the requirement that at that spot must locomote national measures to preclude their 'misuse', in addition to inward item to preclude successive assignments beingness used to circumvent them. As the Commission points out, this is a item conduct chances where at that spot is a qualifying menstruum for obtaining equal treatment. While the EU's fixed-term piece of work Directive restricts the successive job of fixed-term contracts, the CJEU has ruled inward the Della Rocca example that this Directive does non apply at all to temporary workers. So the interrogation of what constitutes misuse must locomote defined from scratch. It is unfortunate that the drafters of the way piece of work Directive did non merely apply the fixed-term piece of work Directive rules, inward lodge to supply for around legal certainty. The Commission does non comment farther on the rules used to preclude misuse, or on the Member States' job of the 3rd derogation.

Job creation

The Directive requires Member U.S.A. to review existing barriers to way work, in addition to states that such restrictions tin exclusively locomote justified inward the full general interest, inward item equally regards wellness in addition to safety, protection of abuse, worker protection in addition to surgical operation of the labour market. According to the Commission, piece Member U.S.A. create got reviewed their national law, few create got changed it, justifying their existing restrictions on i of the grounds laid out inward the Directive.

However, it could locomote argued that the interests of worker protection in addition to protection of abuse are already addressed inward the Directive, in addition to the number of wellness in addition to security is already addressed yesteryear split upward legislation (referred to inward the report) which allows Member U.S.A. to prohibit temporary workers from sure jobs on wellness in addition to security grounds. Some Member U.S.A. create got banned temporary workers from beingness used equally 'scabs' to supersede hitting workers; this possibility is clearly authorised yesteryear the preamble to the Directive.

Other issues

The Commission finds no job amongst Member States' application of the rules on workers' representatives, access to job in addition to dismisses the arguments of manufacture that the Directive imposes too many toll requirements for them.

Overall, the Commission concludes that at that spot is no demand to revise the Directive, in addition to states its intention to handgrip farther discussions almost its right interpretation. It should locomote noted that at that spot is i example pending earlier the CJEU almost this Directive: the AKT case, which asks the Court to clarify whether sure national barriers to the job of way piece of work tin locomote justified. Furthermore, inward its judgment inward Michaeler, the CJEU held that national rules restricting part-time piece of work breached the EU's part-time workers Directive, in addition to had to locomote laid aside yesteryear the national court. That judgment could plainly locomote relevant yesteryear analogy.

Comments

The Commission clearly does non want to upset anyone yesteryear proposing the amendment of this Directive, or fifty-fifty equally regards its application. It dismisses the objections of its critics rather summarily also. This is a classic case where a thorough 'impact assessment' needed to convey place, non (as is ordinarily the case) before legislation is proposed, but inward lodge to create upward one's heed the actual impact inward practice. How much create got workers benefited from this Directive, in addition to at what toll to employers? Have jobs been created or lost?

Also, the Commission could usefully create got to a greater extent than clearly indicated its sentiment equally to the right interpretation of the Directive, for example inward a guidance document. It's difficult to piece of work out what the Commission genuinely thinks, also discerning an unwillingness to disagree amongst anyone.  As noted above, at that spot are skillful reasons to intend that around national restrictions on the job of way piece of work mightiness locomote opened upward to challenge, in addition to that around Member U.S.A. are non sufficiently complying amongst the minimum requirements for way workers' protection. The Commission's approach to the Directive inward its study does non genuinely assist to clarify these matters.

[Update: the CJEU gave its ruling inward the AKT example on way workers inward 2015. See analysis here.]

[See also: my analysis of the number of equal handling of atypical workers, inward an article published inward the Yearbook of European Law.]

Barnard & Peers, chapter 20

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