Full text - European Trade Union Institute (ETUI)

Temporary agency work in the European Union
rules of the country of origin (or any other country) applicable to the employment
contract. With the restrictive interpretation of the Posting of Workers
Directive by the CJEU, compliance with the aim of the Directive becomes
more difficult, in particular as regards the guarantee of fair competition and
respect for workers’ rights (recital 9 of the Posting of Workers Directive),
while safeguarding the fundamental social rights of collective bargaining and
collective action.
Are cross-border temporary agency workers also
posted workers
Article 1 of the Posting of Workers Directive, which defines the scope of the
text, clearly states that it applies to ‘temporary employment undertaking[s]
or placement agenc[ies], [which] hire out a worker to a user undertaking established
or operating in the territory of a member state, provided there is an
employment relationship between the temporary employment undertaking or
placement agency and the worker during the period of posting’, also called
cross-border temporary agency work. In concrete terms, a temporary agency
worker who has been hired by a temporary work agency in country A is posted
by the same agency to work in country B for a user undertaking.
For its part, the Temporary Agency Work Directive does not explicitly exclude
cross-border temporary agency work from its scope, as Article 1 states that
‘this Directive applies to workers with a contract of employment or employment
relationship with a temporary work agency who are assigned to user
undertakings to work temporarily under their supervision and direction’. The
European Commission explained in 2002 that: ‘The specific aim of this new
legislation is to clarify and harmonise the conditions for posting workers at
national level. It can be seen as an extension of arrangements already in force
for transnational posting of temporary workers’ (2002/0072(COD)).
However, according to the CJEU, transnational posting by a temporary work
agency constitutes the provision of services and not normally an act of the
free movement of workers. Grounds for this conclusion relate systematically
to posted workers not as parts of the country of destination’s labour market.
According to Schlachter (2012), however, ‘at least for temporary agency
workers, this reasoning was never really adequate’. Even in the case of posted
agency workers the CJEU has stated in the Vicoplus case (C-307 to C-309/09)
that [posted agency workers] ‘gain access by means of making available of
labour’. Consequently, and in particular in terms of labour law and protection
of workers, it appears that for the minimum protection for transnational temporary
agency workers (as well as for posted workers), some harmonisation of
EU law and CJEU jurisprudence would be welcome.
WP 2012.13 57