Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
Penalties vary widely among Member States. First, some of them did not undergo
major changes with the implementation of the Directive. This is the
case, for example, of Spain, where penalties are said to be appropriate, or in
Sweden, where agencies are liable in case of non-compliance with the Directive.
In the Netherlands, the government is of the opinion that Article 5 para.
5 does not need implementation because the temporary agency worker can
go to court or lodge a complaint with the Dutch Labour Inspectorate. The
FNV is of the opinion that this is not sufficient because Article 5 para. 5 deals
with abusive situations and has broader scope. Legal remedies are only one
element. The Dutch bill on combatting fraudulent temporary work agencies
that came into force on 1 July 2012 enforces the abolition of criminal sanctions
and the introduction of administrative fines on the basis, amongst other,
that administrative fines will have a more deterrent effect due to the foreseen
amounts, and would thus be more efficient.
In contrast, in other Member States transposition of the Directive has been
an opportunity to strengthen penalties, as in Austria, so that the non-compliant
user undertaking is no longer protected, coupled with the 40 per cent
increase in the level of financial penalties in case of infringement. The social
partners have not yet reached agreement on other possible changes.
In Italy, new sanctions have been implemented, including criminal sanctions
in case of a temporary agency that charges workers fees (Art. 3 (1)a of
Decree of 2012).
The main sanction used is fines (and even imprisonment), as in Greek legislation
(Art. 25 of L. 2956/2001, as amended by Art. 3 of L. 3846/2010) where
penalties are provided for any breach of the provisions on temporary agency
work (administrative fines from 3,000 to 30,000 euros), and also in Poland,
Luxembourg, France, Czech Republic and Germany. In Greece, the same
penalties are imposed when an enterprise in a group of undertakings is operating
for the purpose of providing workers to another enterprise of the group.
Usually, the agency is liable and penalties can be related to the licence system.
For example, in Belgium law, the licensing of temporary works agencies and
the threat of losing the license when not complying with labour legislation
has proven to be fairly effective. In case of breach of law, liability of the user
undertaking leads to the conversion of the temporary agency work contract
into an open ended contract with the user undertaking, giving the temporary
agency worker an entitlement to compensatory damages (termination fees).
In Greece, if a temporary work agency is operating without the due operating
license, not only is an administrative penalty of sealing and closure imposed,
but the person liable and responsible for this temporary work agency is punished
with two years’ imprisonment and pecuniary punishment.
Nevertheless, in many countries, both temporary work agencies and user undertakings
could possibly be liable. For example, Polish law provides penal
sanctions in the law on the employment of temporary workers and fines for
user undertakings or persons acting of their behalf for non-compliance with
health and safety provisions and other conditions agreed in writing with a
temporary work agency. A temporary work agency as employer may also be
WP 2012.13 51