Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
Access to collective rights
Temporary agency workers’ access to representation bodies seems to be a
new issue for some Member States. The report shows that agency workers
are more and more represented at the user undertaking, in some cases with
a condition of seniority. Nevertheless, representation at the agency remains
the main option, whereas in few cases temporary agency workers can be represented
in both the user undertaking and the temporary work agency. As
regards information and consultation of workers’ representatives about the
use of temporary agency work, the report shows that it already exists in a fair
number of Member States, even if it is not always automatic.
The more favourable clause and the non-regression clause
The Directive only sets minimum standards, meaning that Member States
can provide further, more favourable protections. Additionally, the so-called
non regression clause secures that implementation measures shall not constitute
grounds for reduction in the general level of protection in the fields
covered by the Directive. This issue seems not to have attracted the attention
of many national legislators.
Effective, proportionate and dissuasive measures
The last substantive rule enjoins Member States to take effective, proportionate
and dissuasive measures to ensure application of the Directive. The
sanctions provided by Member States’ legislation vary widely, from penal
sanctions, such as fines or imprisonment, to civil sanctions, such as damages,
rewriting of the employment contract or withdrawal of the license. No report
clearly stresses whether sanctions are satisfactory or not, as it is probably too
early to draw any detailed evaluation on this particular aspect. .
In an extra section, attention is given to the articulation between the Temporary
Agency Work Directive (2008/104/EC), the posting of workers Directive
(96/71/EC) and the pending European Commission’s proposal on the socalled
‘Enforcement Directive’, which will (if adopted) provide mechanisms
designed to enforce the Directive on posting of workers so as to propose, according
to the European Commission, a clearer definition of its scope, a better
understanding of the articulation of economic freedoms and protection
of workers, as well as better enforcement of the Directive itself, following the
well-known CJEU cases, Viking (C-438/05), Laval (C-341/05), Rüffert (C-
346/06) and Commission v. Luxembourg (C-319/06). A critical assessment of
this later draft directive stresses the lack of ambition of the proposal and the
little impact it will have on solving the existing loopholes and deadlocks in
promoting better working conditions and fundamental social rights of cross
border (temporarily agency) posted workers.
Finally, the report ends with a critical assessment of the transposition measures
of the Directives in the domestic legislation of the Member States, revealing
worrying trends witnessed in various member states, in which, for
example, the transposition measures are unsatisfactory or non-existent, or
where Member States have adopted a minimal interpretation of the provisions
of the Directive.
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