Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
the minimum wage of temporary workers is no longer the wage paid to the
employees of the user undertaking, but the national minimum wage.
Restrictions or prohibitions (Article 4)
Article 4 provides that restrictions and prohibitions with regard to temporary
agency work should be reviewed and so as to be justified only on the ground
of general interest regarding, in particular the protection of workers, the requirements
of safety and health at work and the need to ensure that the labour
market functions properly and that abuses are prevented (recital 18). Member
states can be divided into four categories.
First, in some Member States, reviews of national restrictions or prohibitions
are reported to be in progress, but no changes are yet foreseen, mainly due to
strong disagreement between trade unions and employers’ organisations. For
instance, the issue is currently being discussed in Belgium, but it appears to
be the most difficult piece of law to implement, as there is no common view
at any level. Hopes are vested in the Court of Justice’s case law not lifting restrictions
(the Hennigs case 3 may justify this hope). In Belgium there is major
lobbying from the employers’ associations to lift restrictions or prohibitions.
Nevertheless, the social partners have been involved in the preparatory work
of the bill transposing the Directive, and they are still negotiating on various
questions, such as the creation of a new permissible ground for temporary
agency work, allowing the conclusion of a permanent contract.
In the Netherlands, the government recently asked the Dutch Labour Foundation
(Stichting van de Arbeid) to review the restrictions and prohibitions
in the Collective Labour Agreements. The Dutch government is reviewing restrictions
and prohibitions in legislation. In this review, the Labour Foundation
also has to be consulted. The review is still in discussion with employers,
who want to lift as many such prohibitions and restrictions as possible. The
Dutch Federation of Trade Unions, FNV (Federatie Nederlandse Vakbeweging),
is of the opinion that restrictions and prohibitions have to be understood
in the general context of the Directive. Employment contracts of indefinite
duration are the general form of employment relationship. In some cases,
clauses in Collective Labour Agreements about temporary agency workers are
to be conceived as conditions instead of restrictions and prohibitions. Thus,
most restrictions and prohibitions can be justified on grounds of general interest.
Current restrictions in Austria are under scrutiny but any change of legislation
proposed by the Chamber of Industry and employers’ associations would
need the agreement of the trade unions and the Chamber of Labour. Both
3. CJEU case C-297/10 (Sabine Hennigs v Eisenbahn-Bundesamt) in which the CJEU, in a case
dealing with non-discrimination on grounds of age based on Article 21 Charter, held that the
respective national measures at stake were not adequate or necessary to achieve the aim pursued,
and therefore they lacked proper justification.
WP 2012.12 33