Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Carolie Guedes
Explanations of the failure of the negotiations are of two different kinds. First,
trade unions and employers’ organisations disagree on some key elements of
the substance of the agreement itself. The other explanations are more specific
to the context of the negotiations.
Regarding the disagreements on the substance of the agreement, first there
was fundamental opposition between the trade union side and the employers’
side with regard to the purpose of the agreement itself. ETUC wanted to
marginalise temporary agency work or at least to provide more protection for
agency workers; employers, on the other hand, wanted to promote temporary
agency work as a tool of employment policies, given its positive effect on job
creation (Jones 2002).
In more detail, there were four problematic points. First, they were opposed
on whether to include pay in the basic employment conditions subject to the
principle of equal treatment. Second, employers wished to remove all restrictions
on the use of temporary agency work, while ETUC was in favour
of regulation more or less similar to what was provided by the Directive on
fixed-term work (Jones 2002). Third, they had divergent views with regard
to the scope of the agreement, the main question being whether to include
temporary agency workers with open-ended employment contracts with the
agency within the scope of the agreement. However, the most burning question
concerned the implementation of the equal treatment principle from day
one as well as the definition of a possible comparable worker. ETUC wanted
it to be a permanent worker doing the same job in the user undertaking and
to enjoy equal treatment from the first day of assignment, but no agreement
could be found with the employers’ organisations (Vaes and Vandenbrande
2009). As already mentioned, the context also exercised a great influence on
the negotiation process.
First, it is worth mentioning that with regard to temporary agency work there
were many differences between Member States’ legal frameworks, which was
not the case for fixed-term and part-time work (Ahlberg 2008). Moreover, the
European social partners no longer had to prove their legitimacy as actors in
the European social dialogue because, as mentioned above, it was already the
fourth negotiation (Ahlberg 2008).
Another key element was that disagreements and tensions emerged among
employers’ representatives (particularly between UNICE and CIETT), but
also among trade union representatives (Bercusson 2008). In addition, ETUC
had to prove that they were not willing to accept an agreement at any price, as
they had been strongly criticised with regard to the agreement on fixed-term
contract (Ahlberg 2008).
Another major factor may also have been the intervention of the European
Commission’s legal service. One of the main incentives in European social
dialogue is that a text drafted by the European Commission is likely to be less
favourable than a negotiated agreement.
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