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State of transposition and involvement of social partners Prior to the Directive, there was no domestic legislation on temporary agency work in three Member States (Bulgaria, Denmark and the United Kingdom). In Sweden, legislation tackling the issue of temporary agency work did exist, but it has not been applied for a decade, so the implementation of the Directive is to be seen as new legislation. However, implementation seems to be an issue of intensive discussion with social partners and at national parliaments, that have led to delay in particular in Sweden (together with Cyprus and Denmark), that currently face EU infringement procedure, the European Commission requesting them, in the form of a ‘reasoned opinion’ to be notified, until 21 of December 2012, of measures taken to implement the Directive Twenty Member States have transposed the Directive (Austria, Belgium, Bulgaria, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Malta, the Netherlands, Norway, Portugal, Romania, Spain and the United Kingdom). Transposition is reported to be in progress in three Member States (Cyprus, Denmark and Sweden, which currently face EU infringement procedures from the European Commission for the non-transposition of the Directive). In Norway, the trade union Fellesforbundet has been opposed to implementation of the Directive, arguing that the possibility of concluding a temporary contract of employment has to remain subject to collective bargaining. A national strike took place in January 2012 to protest against the government’s plan to adopt the Directive. Workers feared that this would encourage the use of temporary agency work and thus threaten permanent employment and weaken trade union power. In the meantime, the Norwegian government included the Temporary Work Agency Directive in the EEA agreement and amendments to the Working Environment Act have been adopted and will come into force on 1 January 2013. Currently, no transposition is foreseen in France and Poland, as domestic legislation is considered to be already compliant with the Directive. In Poland, the existing legislation does not however, includes the obligation to inform temporary agency workers about the possibility of taking up employment at the user undertaking. In Luxembourg the transposition procedure has not yet started, although there is need to improve the national legislation in relation to art. 6 (1), 6 (3) and 6 (5) of the Directive. We have little information on the following Member States: Cyprus, Estonia, Latvia, Lithuania, Malta and Report 125 21
Isabelle Schömann and Carolie Guedes Slovakia, as well as Iceland and Liechtenstein (EEA); for the latter, our information dates back to 2009, when trade unions and employers associations were invited to submit a first opinion. In many countries – such as Estonia, Latvia, Malta and Lithuania – temporary agency work is regulated through commercial law, and particularly through licensing. In Lithuania, this is the first regulation on temporary agency work, as the issue was not regulated in the national context despite the fact that the guidelines for further regulations had been adopted by the government in 2007 and that ILO Convention No. 181 ratified in 2004. In Cyprus, there is no legal concept of temporary agency work. Atypical forms of work only encompass fixed-term contracts and seasonal work. The European Commission has requested Cyprus, Denmark and Sweden to implement in their national law new EU legislation which defines conditions for temporary agency workers. Although the process of adopting national implementing measures is under way in the three Member States, there are no precise indications when this process will be completed. Consequently, temporary agency workers may be denied the guaranteed working conditions to which they are entitled under the Directive. For this reason, the European Commission has requested them to notify, under EU infringement procedures, within 2 months (until 21 of December 2012) the measures taken to implement the Directive. Once that time limit has been exceeded, the European Commission may decide to refer these Member States to the EU’s Court of Justice. In general, the social partners have been involved in preparatory work to transpose the Directive. Negotiations between trade unions and employers’ associations appear to be difficult, especially in Bulgaria and Austria. In Ireland, the social partners failed to reach an agreement on the implementation of the Directive, but they were both consulted by the Department of Enterprise, Jobs and Innovation which adopted the 2012 legislation. State of play article by article with focus on specificities of national legislations main difficulties/loopholes 22 Report 125
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