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Temporary agency work in the European Union bill adopted on 4 September 2012 provides that temporary agency workers are entitled to the same social benefits as other employees of the user undertaking (childcare, cafeteria, social welfare, additional breaks) and to company supplementary pensions. In Slovenia, there have been expert discussions and suggestions concerning the fact that access to collective facilities and vocational training has to be laid down explicitly in the Employment Relations Act. In Norway, the temporary agency workers shall have the same access as regular employees to the collective facilities of the user undertaking, unless different treatment is justified by objective reasons. The most problematic issue remains the organisation of and access to training. It is useful to mention that the Directive is less binding on this point. In France, access to further vocational training should be provided by the temporary work agency, although training in respect of health and safety already takes place at the user undertaking. In Poland, a seniority of six weeks is required to have access to training programmes at the user undertaking. In Germany, nothing has been foreseen about the training and career development of temporary workers, although this provision cannot be disposed of by the Member States It is nevertheless worth mentioning, concerning vocational training, that a few countries have already created special funds to finance temporary agency workers’ training, in particular Spain, Austria, the Netherlands and France, as well as in the pending bill on the revision of the Employment Relationship Act in Slovenia. Representation (Article 7) Article 7 deals with the representation of temporary agency workers. It gives Member States an alternative: temporary workers shall at least be represented in the temporary work agency; they can also be taken into account in the user undertaking. Finally, they can be represented in both. In Belgium, the Netherlands, Italy and Luxembourg, temporary agency workers are represented at the user undertaking. In Finland, the shop steward of the user enterprise has the right to represent temporary agency workers. In Denmark, representation of temporary agency workers takes place at the agency, not the user undertaking. Trade unions are currently trying to switch to the representation of temporary agency workers to the user undertaking. In a few other Member States, agency workers can be represented in the user undertaking and in the agency, under certain circumstances. For example, Article 7 does not need to be transposed in Austrian legislation, as the current works council regulation contains the same provisions as the Directive. Work representation is foreseen in the agency as well as in the user undertaking, if temporary agency workers have six months’ seniority. In France, temporary agency workers can be represented in the temporary work agency with three WP 2012.13 47
Isabelle Schömann and Coralie Guedes months’ seniority in the past 12 months. They can also elect worker representatives with three months’ seniority and can be elected worker representatives with a seniority of six months during the past 18 months. At the user undertaking, temporary agency workers can elect workers’ representatives with a seniority requirement of 12 months and can be elected to the works council with a seniority requirement of 24 months. In Czech legislation, the temporary work agency as well as the user undertaking are employers and thus workers’ representatives (trade unions or works councils) may operate in their establishments. Compulsory representation or compulsory membership of professional and similar organisations does not exist in the Czech Republic. Works councils are quite rare and thus agency workers are more often members of trade union organisations than of works councils. There is no special representation for agency workers. A number of Member States have not implemented specific rules regarding the representation of agency workers. For example, Polish law does not provide for specific regulations on the representation of temporary agency workers, which means that they fall within the same legal framework as ‘regular’ employees. Trade union membership is acquired by joining a trade union organisation operating at the employer’s establishment. Therefore, since the temporary work agency is the employer of temporary agency workers, it is at the agency that a trade union organisation should be created. However, some trade unions create special units for workers employed in an enterprise not covered by any trade union organisation, which could be seen as a way for temporary agency workers to join a trade union outside a temporary work agency or a user employer. Despite existing legal possibilities, there are very few trade union organisations covering temporary agency workers. In practice, it is not easy to track all trade union organisations, since according to Trade Union Act 10, workers at an undertaking may gather and establish a trade union organisation by creating a statute and registering it. One possibility allowing trade union membership of temporary agency workers at the user undertaking would be, under current law, to create multi-establishment trade union organisations, covering both a temporary work agency (or agencies) and user undertaking (or user undertakings). This is, however, problematic, since many temporary work agencies cooperate with various user undertakings, and this cooperation may be short. In Slovenian law, there are no special regulations about the representation of temporary agency workers. They can be members of a trade union organised at the employer or user undertaking. In Sweden, temporary agency workers are considered ‘normal employees’ and thus have the same rights of representation as ordinary employees. Article 7 needs to be implemented in Portugal and Spain. In Spain, the law only provides that agency workers have the right to submit complaints through workers’ representatives in the user undertaking. The latter are also supposed to represent agency workers for the duration of their assignment in the user undertaking. In Germany, temporary agency workers need to be represented in their agency as well as in the user undertaking. In this context, the domestic law is not precise and remains unchanged. Whether temporary workers count for the purposes of calculating the threshold to form a workers’ 48 WP 2012.13
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