Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
subject to penalties for misdemeanours enshrined in the Labour Code, as
well as crimes against the rights of persons performing paid work under the
Penal Code. Civil liability is foreseen in the case of breaches of the principle
of equal treatment, with compensation for temporary agency workers (not
less than the national minimum wage). Furthermore, the temporary work
agency has a right to seek reimbursement from the employer’s equivalent of
the compensation which was paid to the temporary employee. Moreover, the
Labour Inspectorate is entitled to check whether due wages are paid to workers.
Wages cannot be lower than the minimum rate of pay. Non-payment of
wages constitutes a minor offence or (if a court has passed sentence) an offence.
In Luxembourg, in principle, it is either the temporary work agency or
the employer at the user undertaking who puts at the disposal of other user
undertakings temporary agency workers, in violation to Article L.133-1, who
bears the sanctions. Sanctions are laid down in Article L.134-3 of the Labour
Code and range from fines (5,000 to 10,000 euros) to imprisonment, with
fines from 1,250 to 12,500 euros in case of recidivism. The fines are calculated
in relation to temporary agency workers employed at the user undertaking. In
France, both the temporary work agency and the employer at the user undertaking
are subject to penal sanctions of up to 3,750 euros and imprisonment
in case of recidivism. According to Czech legislation (Act 251/2005 Coll. on
labour inspection) an employer commits an offence by violating the duties
specified in Sections 308 or 309 of the Labour Code. He may be fined up to
1 million CZK (around 40,000 euros). In Ireland, in case of non-compliance
with equal treatment in terms of basic working and employment conditions,
the temporary work agency is liable. If the user undertaking fails to guarantee
equal access to collective facilities or to information on vacant positions, it
may be held liable. Claims can be taken to the Rights Commissioner, and possibly
appealed in the Irish Labour Court. The amount of the penalty can be
up to two years’ wages. In the United Kingdom, the user or the Agency could
be held liable, depending on the rule infringed. The main problem for agency
workers is that there is no labour inspectorate; the only way to enforce the
rules on agency work is litigation. But substantial compensation is not provided
in case of non-compliance with the rules on agency work. There are also
considerable problems of proof. Given the cost and trouble associated with
litigation, agency workers may thus decide it is not worth it. Moreover, judicial
actions take place usually after the employment relationship has come to an
end (the only remedy is compensation). Trade unions could play a role in the
process but the rate of unionisation in the agency work sector is particularly
low. In Germany, the secondment of a work can only be of temporary nature.
However, neither is the term secondment defined, nor is there a clear provision
to clarify whether secondment must no longer be understood as merely
temporary. It seems that the German legislator will let the courts interpret the
term temporary. It is however doubtful whether such approach is in line with
the Art. 10 of the Directive.
Some national legislation provides civil sanctions, such as requalification of
the employment into a contract of an indefinite duration under certain circumstances.
This is the case, for example, in Greece and in France.
52 WP 2012.13