Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
variety of issues, including that after 12 weeks in a given job an agency worker
is entitled to equal treatment (at least the basic working and employment conditions
that would apply to the worker if they had been recruited directly by
that undertaking to occupy the same job). Legislation was also adopted to
introduce provisions on equal pay. Since the implementation of the Directive,
a new strategy seems to have developed in the United Kingdom. Temporary
agency workers are made to sign new employment contracts indicating that
they are now considered permanent employees. Trade unions are worried
that this new practice is only a way of avoiding the principle of equal pay and
equal treatment provided by the Directive. Moreover, the British legislator
has introduced what is called a ‘real comparator defence’, which means that
the user can argue that he has complied with the principle of equal treatment
as soon as the agency worker is entitled to the same employment conditions
as a real comparable employee of the user undertaking. The provision carries
a risk. Indeed, the user can employ a token employee on poor conditions of
employment for the purpose of comparison.
In Ireland, the principle of equal treatment is now in force and, in contrast to
the United Kingdom, Ireland decided not to resort to the exception provided
by the Article 5 of the Directive. The principle of equal treatment applies from
the first day. Nevertheless, the exception provided by the paragraph 2 of the
article 5 has been transposed. The principle of equal treatment is not applicable
to temporary agency workers with a permanent employment contract.
Irish law provides some conditions, however. Indeed, the temporary agency
must notify the worker with this kind of contract that the principle of equal
treatment will not apply in a written document. Moreover, when workers are
not employed in a user undertaking, they are entitled to compensation whose
amount must at least equal half of the salary paid during their previous assignment.
This exception only applies regarding pay.
At first sight, Portugal seems to have implemented the Swedish derogation.
National law does not regulate the activity of temporary work in line with the
Directive, especially regarding enforcement of the equal treatment principle.
In fact, the law separates ‘temporary work contracts’, similarly defined as in
the Directive, from ‘open ended contracts for temporary work’. Article 185 of
Law No. 7/2009 provides that during the period of assignment, temporary
workers, whatever the form of their employment contract, are entitled to the
rules applicable at the user undertaking regarding working mode, place and
time, the suspension of the employment contract, health and safety at work
and access to facilities. Between assignments, they are entitled to compensation
whose amount at least equals the national minimum wage or the amount
provided for by the applicable collective agreement in the user undertaking
or the temporary work agency or at least two-thirds of the wage paid for the
last assignment, being the highest amount actually applicable (Article 184).
But this derogation is not in line with the Directive as it is not limited to pay.
Furthermore, the social partners have not been consulted on the issue, as
the Directive required. It remains that in the current not yet amended Portuguese
legislation on temporary agency work, temporary workers are entitled
to the minimum wage provided by the collective agreement applicable in the
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