Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
trade unions and the Chamber of Labour reject loosening restrictions, so it
is expected that no change in current restrictions and prohibitions will occur
based on transposition of the Directive. However, changes via national,
regional or sectoral collective agreements may take place. However, it is currently
difficult to evaluate how such changes could be made.
In Finland, restrictions and prohibitions on temporary agency work in legislation
have been reviewed by the government. The social partners have reviewed
the restrictions and prohibitions in collective agreements. The employers’
association has argued that the restrictions in collective agreements
should be removed. The government and trade unions argue that Article 4
only imposes an obligation to review but not to remove such restrictions or
prohibitions. Therefore, no restrictions or prohibitions have been removed.
In Germany, there are restrictions on temporary work in the construction
industry. Employers’ organisations are demanding the abolition of these restrictions,
but this has not yet happened. Trade unions are demanding, for
example, a strict prohibition on temporary work in case of strikes, but there
has been no change on this issue either. There has been no review of collective
agreements. In the same vein, another piece of law prohibits temporary
agency work in the area of transport for company purposes (Art. 1(2) no. 3
Sentence 1 of the Road Haulage Act (Güterkraftverkehrsgesetz).Both cases
might be in breach of Article 4(1) of the Directive. Additionally, Art. 1(3) of
the transposition law excludes certain categories of workers and situation of
the scope of the law, such as (1) the secondment of workers from one employer
to another employer of the same branch or industry, if the aim of the secondment
is to avoid short-time work or dismissals and if such secondment
is provided for in a collective agreement which is applicable to both employers
(Art. 1(3) no. 1); (2) the secondment of workers (or intra-corporate
transfer of workers) where both employers belong to the same group of companies,
if the worker was neither taken into employment nor employed with
the aim of being seconded (Art. 1(3) no. 2); (3) the secondment of workers
from one employer to another, if secondment only occurs occasionally and
if the worker was neither taken into employment nor employed with the aim
of being seconded (Art. 1(3) no. 2a); (4) if the worker is seconded to an employer
abroad under circumstances that are described in more detail in the
Act (Art. 1(3) no. 4). Second, in other EU countries, restrictions exist but no
review is reported to have started. For example, in Portugal, restrictions
only affect so-called temporary agency work employment contracts, which
are considered to be fixed-term contracts. Basically, the article of the Labour
Code tackling the issue refers to the restrictions provided by articles regarding
fixed-term contracts (some are nevertheless expressly excluded), namely,
the replacement of absent workers, seasonal work, an increase in the activity
of the company or occasional tasks. Some sectoral collective agreements
provide that temporary work is not allowed due to safety and privacy issues.
As no consultation of the social partners took place it is difficult to identify
development in the respective sectors in respect of any change in restrictions
or prohibitions.
34 WP 2012.13