The Protection Of Temporary Way Workers According To The Cjeu: The Akt Judgment

Alejandra Victoria García Sánchez *

Research as well as Documentation Department of the Court of Justice of the European Union (The opinions expressed inwards this weblog post service are exclusively those of the author)

Last calendar week the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its outset ruling on Directive 2008/104/EC on temporary means work, the judgment inwards AKT, Case C-533/13. The next weblog post service sets out the legal context of the Directive, the top dog points of the judgment as well as an analysis of the judgment, comparison it to illustration police push clit on related legislation as well as commenting on the top dog issues that it raises.

Legal context of the on temporary means piece of work Directive

Temporary means piece of work is regulated past times Directive 2008/104, which was adopted nether the legal dry reason provided past times Article 153, paragraph 2, of the TFEU. Two other forms of so-called ‘atypical work’, part-time piece of work as well as fixed-term work, are regulated past times Framework Agreements negotiated past times the social partners (these Agreements are annexed to Directives 97/81/EC as well as 1999/70/EC respectively).  The recitals of the Framework Agreement on fixed-term piece of work stated an intention to adopt a like Agreement on temporary means work; however, the failure of the social partners to hand such an Agreement led the European Union legislators to adopt a Directive instead. The Commission reported on the transposition of the Directive past times Member States inwards 2014.

Field of application of the Directive

The CJEU had previously clarified inwards its judgment in Della Rocca that fixed-term workers placed past times a temporary piece of work means at the disposition of a user corporation are non covered past times the Framework Agreement on fixed-term piece of work but past times the Directive on temporary means piece of work (paragraph 36).

In guild to determine whether a worker is protected past times the Framework Agreement or past times the Directive, the type of employer prevails over the type of contract that binds that employer to the employee.

The facts as well as the judgment of the CJEU inwards AKT

In the AKT judgment, the CJEU clarified the ambit of the obligations stated inwards Article 4(1) of the temporary means piece of work Directive, entitled “Review of restrictions or prohibitions”. This provision states that “prohibitions or restrictions on the exercise of temporary means piece of work shall live on justified only on grounds of full general involvement relating inwards item to the protection of temporary means workers, the requirements of wellness as well as security at piece of work or the demand to ensure that the labour marketplace seat functions properly as well as abuses are prevented”. Article 4(2) states that Member States shall review restrictions that are non based on full general involvement grounds.

The task SAF has been employing temporary means workers for several years. The AKT, a merchandise union, contended earlier Finnish courts that SAF was employing temporary means workers to perform the same tasks every bit its ain workers as well as required SAF as well as Öljytuote ry, an employers’ association, to pay a penalization provided past times Finnish police push clit punishing improper exercise of temporary means workers. The defendants contended that the Finnish provision establishing a penalization for improper exercise of temporary means piece of work is opposite to Article 4(1) of Directive 2008/104, since that limitation is non justified on the grounds of full general interest. The national courtroom doubted whether Article 4(1) of the Directive obliges national authorities, including the courts, to non enforce or non apply national provisions containing prohibitions or restrictions that are non justified on grounds of full general interest.

The CJEU analysed Article 4(1) “in its context”. It highlighted that paragraphs 2, three as well as five of the same Article require the Member States to review as well as verify whether the limitations pose downwardly past times their laws are compatible alongside Article 4(1), that they notify the Commission of the review as well as that the Member States rest costless to either take or conform the restrictions as well as limitations pose downwardly past times their laws (paras 26-30). The CJEU stated that the tasks indicated inwards Article four are to live on performed past times the competent authorities of the Member States, as well as non past times national courts. Furthermore, the CJEU concluded that Article 4(1) does non require the adoption of specific legislation (para.31).

The illustration police push clit on the part-time piece of work Framework Agreement

It is interesting to compare the handling of Article 4(1) of the temporary means piece of work Directive alongside the illustration police push clit on the like provision of the part-time piece of work Framework Agreement.

The latter  Agreement contains a provision that is like to Articles 4(1) as well as 4(2) of Directive 2008/104: Clause 5(1)(a) of the Framework Agreement imposes an obligation on Member States to “identify as well as review obstacles of a legal or administrative nature which may bound the opportunities for part-time piece of work and, where appropriate, eliminate them”.

Clause four of the part-time piece of work Framework Agreement, which states the regulation of non-discrimination of part-time workers inwards abide by of work conditions, has been considered past times the CJEU every bit articulating a regulation of European Union social police push clit which cannot live on interpreted restrictively (Case C-395/08, Bruno e.a., para. 32).

In Case C-395/08, Bruno e.a, paras. 80-81, the CJEU reached the decision that, where national legislation is found past times a national courtroom to live on incompatible alongside Clause 4, i.e., it discriminates against part-time workers, discouraging the workers from pursuing their occupational action on such a basis, Clauses 1 as well as 5(1) of the understanding would lead maintain to live on interpreted every bit too precluding such legislation.

An illustration of a mensurate that has been found to infringe Clause 5 was identified inwards case C-55/07, Michaeler a.o., where Italian national police push clit required employers to notify part-time piece of work contracts thirty days afterwards their conclusion, alongside the possibility to impose fines inwards illustration of lack of notification. The mensurate was found past times the CJEU to dissuade employers from using part-time piece of work contracts as well as thus, to live on precluded past times Clause 5(1)(a) (paras. 28-20).

This illustration police push clit provides guidance on the number of when a mensurate should live on eliminated according to Clause 5(1)(a) as well as tin live on applied past times analogy to Article 4(1) of the Directive inwards guild to clarify the causes why a Member State is entitled to restrain or prohibit the exercise of temporary means piece of work as well as when is it required to withdraw a restriction or prohibition.  However, this was non at number inwards the AKT judgment. The number is non when but who should withdraw an unjustified restriction upon temporary means work. According to the inwards a higher house mentioned illustration law, nether Clause 5(1)(a), both the Member States as well as the national courts tin perform the task of eliminating unjustified restrictions. This machinery ensures that, if restrictions persist, a national courtroom tin solve the job past times eliminating the obstacles, contributing to the achievement of the objectives of the Agreement.

 Comments

In the AKT judgment, the CJEU entrusted exclusively the governments of the Member States alongside the task of complying alongside the objective of article 4(1). Thus, the illustration police push clit regarding Clause 5(1)(a) cannot live on used past times analogy, every bit it could lead maintain been expected, inwards guild to translate who should review or eliminate a mensurate non compatible alongside article four of the Directive, since, every bit it has been interpreted past times the CJEU, only the Member States’ competent authorities lead maintain the ability to review or eliminate national provisions inwards guild to determine when as well as how to comply alongside the objectives of the Directive.

The CJEU inwards this judgment interpreted Article 4(1) inwards “its context”; however, the “context” was limited to the other paragraphs of Article 4. It is truthful that looking at those provisions, only governments as well as social partners (if such restrictions or prohibitions are pose downwardly past times collective agreements, according to Article 4(3)) tin boot the bucket along according to Article 4(1). However, the CJEU did non bring upward the objective of the Directive settled inwards Article 2. The Directive aims at recognising temporary piece of work agencies every bit employers, piece taking into business organisation human relationship the demand to found a suitable framework for the exercise of temporary means piece of work alongside a watch to contributing effectively to the creation of jobs as well as to the evolution of flexible forms of working. Thus, from the dot of watch of social policy, the rationale behind the adoption of the Directive seems clear: to stabilise the province of affairs of temporary piece of work agencies as well as to settle their legal status every bit employers, limiting the exercise of their temporary workers only on grounds of basic piece of work standards such every bit health, security or prevention of abuses, which are basic principles of social policy applied inwards many other fields of labour law. Once this policy stair has been taken, from the dot of watch of legal consistency, the objective of the Directive beingness clear, the combination of Articles two as well as 4(1) of the Directive should atomic number 82 to the empowerment of national courts to non apply national laws that restrain temporary means piece of work farther than necessary, which are opposite to European Union police push clit (as is the illustration alongside Clause 5(1) of the part-term piece of work Agreement).

The exclusion of the competences of the national courts to non apply measures that run counter to Article 4(1) mightiness so live on paradoxical, since, the unjustified restrictions that lead maintain non been modified or derogated from past times the “competent authorities” volition lead maintain to live on applied past times national judges, fifty-fifty if they consider them to live on opposite to the Directive.

However, this judgment has been welcomed past times trade unions, since it has been considered that it “guarantees the social partners’ autonomy inwards regulating the exercise of temporary means piece of work through collective agreements”. Their joy should live on limited, every bit nosotros should non forget that Article 4(3) states that the review referred to inwards paragraph two may live on carried out past times the social partners who lead maintain negotiated the relevant agreement. Furthermore, the Directive is silent clearly inwards favor of recognising that temporary means piece of work is a shape of work that should live on protected, as well as only limited on the dry reason of commutation piece of work standards. The fact that national courts are non entitled to pose aside unjustified restrictions (according to the CJEU) does non hateful that the Directive’s objective has changed, but it does hateful that the achievement of that objective is delayed as well as to a greater extent than hard to reach, since the political volition of governments as well as social partners mightiness non live on focused on these aims.

[See also: Steve Peers' article on non-discrimination against atypical workers, inwards the Yearbook of European Law.] 

[See also:

Barnard & Peers: chapter 20

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