Full text - European Trade Union Institute (ETUI)

Isabelle Schömann and Coralie Guedes
pretation of the provisions of the Directive (UK). Some other examples (albeit
not an exhaustive list) show the reluctance of Member States to respect the
words and spirit of the Directive: for example, in Bulgaria and in Portugal,
where the way in which the Directive is being transposed, in the economic
crisis and without any consultation of the social partners, is affecting the real
spirit of the Directive and allows very different interpretations of the resulting
texts of the several amendments of the existing law; and also in Germany,
where some articles of the Directive were ignored, others partly transposed.
Moreover, vague legal terms remained undefined, which has caused a lack of
legal certainty, for example on the issue of access to vocational training while
on the job. In the United Kingdom, where the regulations apply in a minimalist
fashion, providing as little protection as is possible under the Directive.
The TUC together with Unite explore the possibility of legal action to challenge
the regulations through the European Courts. Regarding equal treatment
a proactive stand would be necessary as often the temporary worker
simply does not have the necessary information to benefit from all the facilities
and benefits available to the permanent staff. UNI-Europa has expressed
concerns about possible abuses, ‘noting that Article 5.1 of the Directive allows
for a qualifying period before the principle of equal treatment is applicable, on
the basis of a national social partners’ agreement; it also permits derogations
and flexibilities for agency workers on permanent contracts of employment
who are paid between assignments’. UNI-Europa stated ‘that there is some
evidence of temporary agencies employing workers on permanent contracts,
thus making them permanent employees of the agency and exempt from the
equal treatment requirements of the Directive’ (Eurofound 2012). 11
Temporary agency work has been the most rapidly growing form of atypical
work in the EU over the past 20 years (Arrowsmith 2008). If, on one side (the
supply side), temporary agency work may smooth the re-engagement of the
(long-term) unemployed into work, increase the participation of people that
need or prefer temporary work in the labour force by both maintaining their
employability and propose a form of work–life balance, it allows, on the other
side (the demand side), ‘user firms to make relatively easy labour adjustments
and offers transaction-cost savings by outsourcing some responsibility for
recruitment and administration’ (Arrowsmith 2008). In addition, the massive
and systematic use of temporary agency work allows for reductions in
the ‘core’ permanent workforce, but also to respond to any production peaks,
so as to get wage costs under control and achieve labour flexibility. It is most
used to get lower-skill workers in competitive sectors with varying or unpredictable
demand. As a consequence, temporary agency work is at the centre of
the ‘flexicurity’ debate, increasing trade union concerns about the treatment
of agency workers, as well as having potential implications for permanent
workers. Indeed, temporary agency work may lead workers to work for less
money and with less protection, under much worsen working conditions than
other workers in terms of equality of treatment in pay or access to workers’
11. See: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/temporaryagencywork.htm
64 WP 2012.13