Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
In Germany, the equal treatment principle is undermined as the restriction
of exemptions from equal pay (Art. 5 (2) has not been transposed in domestic
law. According to Article 5 (2) exemptions from equal pay are foreseen in
case of temporary workers having a permanent contract of employment with
a temporary work agency and are also paid during the time between assignments.
And it is more than doubtful whether the ‘overall protection of temporary
agency workers’ (Art. 5 (3)) is guaranteed. Only a so-called ‘revolving
door-clause’ has been implemented (see § 9 Nr. 2 AÜG). It says that a former
permanent employee who comes back to his company within six months as
a temporary worker has to get equal pay. Nevertheless, it remains that even
by a collective agreement no exception from the equal treatment rule is possible
if the temporary worker worked for the user undertaking during the past
six months. The Federal Ministry of Labour can, on proposal of the social
partners, fix a minimum salary for temporary worker. Moreover, social partners
in the chemical industry reached an agreement that temporary agency
workers’ pay will progressively equal 90 per cent of that of permanent workers.
The agreement will enter into force on 1 November 2012. But the crucial
problem is the possibility of derogation from the principle of equal treatment
by collective agreements – hand in hand with the possibility of transposing
this derogation into individual employment contracts, to the detriment of
workers. This problem has not been solved by the Directive. Finally, German
transposition law foresees in Section 1(1) Sentence 3 of the new Act, that ‘the
secondment of a worker to certain consortia does not constitute temporary
agency work if the employer belongs to the consortium, if all members of the
consortium are covered by collective agreements from the same industry,
and if all members are obliged to provide their contractual services independently
in accordance with the consortium contract’. As a result, the principle
of equal treatment – as well as the whole Directive – is not applicable. Some
authors argue that ‘this amounts to a discrimination of seconded workers in
cases where a collective agreement which a member of a consortium is bound
to according to its area of application and is considered fixed by the parties
to the collective agreement, does not apply to the activity of the consortium.
In other words, the requirement that the employer is covered by the collective
agreements does not guarantee that the consortium is covered by it as well’
(European Labour Law Network 2011)
In Latvia, the Confederation of Free Trade Unions of Latvia reported 5 that the
obligation of temporary work agencies to provide temporary agency workers
with the same basic working and employment conditions as the one of regular
employees of the user undertaking is a problematic issue in particular with
regard to pay, as most private undertakings have declared that their salaries
are confidential. Consequently, a user undertaking’s information on pay is not
accessible to temporary work agency. National implementation law (Art. 7 (4)
of the Labour Law) does not provide for any obligation of the user undertaking
to give such information for the purposes of enforcing the rights of temporary
5. See: http://www.labourlawnetwork.eu/national_labour_law_latest_country_reports/national_legislation/legislative_developments/prm/109/v__detail/id__1672/category__19/size__1/
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