Protection for temporary agency workers, March 2002

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Series Details 23.3.03
Publication Date 23/03/2002
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Europeans may find temporary agency work more appealing in the future if proposals [COM(2002)149] tabled by the European Commission on 20 March 2002 get the go ahead from the European Parliament and the Council.

The draft Directive put forward by the European Commission would establish a minimum EU wide level of protection for temporary workers which the European Commission claims would help the sector to 'develop as a flexible option for employers and workers' (IP/02/441). The European Commission further argues that this will help the European Union to achieve the goals set out at the European Council, Lisbon, 23-24 March 2000 of becoming the most competitive and dynamic knowledge-based economy in the world by 2010.

Speaking about the proposal the European Commissioner for Employment and Social Affairs, Anna Diamantopoulou said,

"We have all committed ourselves in Lisbon to more and better jobs. This proposal not only seeks to create more jobs but also aims to provide 'better jobs' for temporary agency workers through a basic minimum of protection throughout the EU."
European Commission: Press Release: IP/02/441

Background

Proposals for regulating the rights of temporary agency workers at the EU level were discussed as far back as 1995 when Padraig Flynn, the then European Commissioner for Employment and Social Affairs spoke of the need to involve the social partners in any consultation in this area of social policy. (IP/95/1050)

However it is such consultation which has led to the stalling of such proposals, particularly during 2001 as negotiations between labour and business organisations broke down. The Union of Industrial and Employers Confederations of Europe (UNICE) and the European Trade Union Confederation ( ETUC) regularly argued over the form the proposals should take and specifically over the definition of "comparable worker". ETUC insisted that a comparable worker should be a worker in the user company rather than a worker in the same temporary work agency but UNICE disagreed, saying such a definition was "totally unjustified".

As a result an impasse was reached in May 2001.

While the proposals have been on the drawing table, the number of temporary agency workers has increased steadily throughout the European Union. Recent studies carried out by the European Foundation for the Improvement of Living and Working Conditions and the International Confederation of Temporary Work Companies (CIETT) suggest with an annual growth of 10% between 1991 and 1998 reaching 1.4% of total employment in Europe in 1998. There appear to be four key reasons for this growth:

  • Increased need for flexibility in the workforce
  • Temporary employment frequently offers a means of gaining access or returning to the labour market
  • Shortage of staff with certain qualifications, especially in occupations related to information technologies
  • More flexible legislative framework adopted by the majority of Member States

In order to achieve Lisbon's goals the European insists on the need for more and better jobs through temporary work because it enables the overall number of jobs to be increased and is particularly suited to the flexibility aspect of today's economy. However, in order to attract citizens to such work, it needs to offer a similar quality to that available in permanent jobs. The European Commission recognises that this will become even more important as the working population declines in the coming years. Therefore the proposals have been put forward in the wake of renewed efforts at Barcelona to focus on achieving Lisbon's goals.

Proposals on temporary agency workers

The key objective of the proposal [COM(2002)149] is to provide a minimum level of protection for temporary agency workers across the EU by establishing the general principle of non-discrimination of temporary workers in terms of basic working conditions to the comparable worker, including pay, as soon as the temporary worker has completed 6 weeks work in the same user undertaking.

Crucially, the EU has defined "comparable worker" as,

"a worker in the user undertaking occupying an identical or similar post to that occupied by the worker assigned by the temporary agency, taking into account seniority, qualifications and skills.

The European Commission has also allowed for some flexibility in the proposal by citing four cases where exceptions to the general principle of non-discrimination are possible. They are:

  • Objective reasons - non-discrimination only applies when one is comparing like situations
  • Where a collective agreement exists
  • Where the temporary agency worker has an open-ended contract with the agency
  • Where no comparable worker nor any collective agreement exist, either applicable to the user undertaking or the temporary agency.

Reaction to the Proposals

Initial reactions from the social partners suggest that the European Commission's argument proposal might have won the support of labour organisations but the business sector remains strongly opposed to it.

The European Trade Union Confederation welcomed the proposal, saying the European Commission had struck the "right note" but criticised the timeframe applied to the principle of non-discrimination, saying

"The ETUC regrets nonetheless the last minute addition of a derogation as regards temporary agency workers employed for missions of less than 6 weeks".

The Federation of European Employers was vociferous in its criticism of the proposals saying,

"Already a heavily watered-down measure, the document does not cover those on permanent contracts with their agencies, or provide any pension rights. It also excludes any requirement to pay bonuses or seniority pay.

Euro-CIETT, the European branch of the International Confederation of Temporary Businesses were also "disappointed" with the substance of the proposal saying,

"Euro-CIETT is concerned about the content of the Commission proposal for a Directive on agency work and its impact on the contribution that the industry makes to job creation. As drafted, the proposal does not reach the desired balance between flexibility and worker protection needed if the agency work industry is to fulfil its contribution to the Lisbon employment creation objectives as ratified by the Stockholm and Barcelona Councils".

UNICE, the voice of European business, called the proposal ill-conceived and specifically criticised the European Commission's definition of "comparable worker" saying,

"The Commission's text imposes the comparison with a worker in the user company as the first point of reference and only allows comparing terms and conditions of employment within the agency as a derogation. The solution proposed is unjustified and unnecessarily complicated".

It went on to suggest that such a proposal would have the opposite effect of Lisbon's goal of creating more jobs, saying,

"What the Commission proposes is a bad compromise, which could lead to unnecessary bureaucracy, legal uncertainty and hamper job creation".

Clearly, the proposal is likely to face continued opposition. Just as the breakdown of the social partner negotiations led to a lengthy stall in the proposal's progress so too could its passage through the EU's decision making process with both the European Parliament's and the Council's agreement needed for the proposal to go through by co-decision.

To trace the full progress of the proposal through the policy-making process you can use these services.

  • OEIL (Legislative Observatory) [insert COM 2002 149 in search by document reference) (provides a full history of the proposal with summaries of each major stage in the process)
  • Pre-Lex (provides a full and concise calendar of the proposal, bibliographical references and some hyperlinks to full text sources)

While the European Commission continues to reassert its aims of achieving the Lisbon goals, amidst such opposition, the proposal on temporary agency workers could prove to be counter-productive

Further information within European Sources Online:

European Sources Online: Topic Guides
Employment and Labour Market Policy
European Sources Online: European Voice
25.03.99: Mixed reaction to call for labour law talks
11.05.00: Tough talking ahead on EU rules for temps
04.01.01: Employers and trade unions in deadlock over temporary staff rules
08.03.01: Employers accused of obstinacy over temps
31.05.01: Jobs talks stall over temporary workers issue
18.10.01: Union group urges better deal for temps
 
European Sources Online: Financial Times
06.03.02: Employers attack moves on workers' rights
18.02.02: Temps may win equal rights
18.02.02: Fears over flexibility if temps get greater rights
19.02.02: Government wary over equal rights for temps
20.02.02: One giant leap for UK temps
22.02.02: Battle to provide security for an army of temps[FT.com]
21.03.02: Temping Fate[FT.com]
21.03.02: DTI seeks concessions on rights for temps. Workplace Directive - Employers criticise 6-week period to qualify for same conditions as permanent staff[FT.com]

Further information can be seen in these external links:
(long-term access cannot be guaranteed)

EU Institutions

European Commission
DG Press and Communication
20.03.02: Commission calls for protection of temporary agency workers and for steps to help develop the sector
 
European Commission: DG Employment and Social Affairs
Homepage
 
Non-governmental Organisations
 
European Trade Union Confederation (ETUC)
Homepage
20.02.02: ETUC welcomes proposed EU Directive on temporary agency work
20.02.02: Letter to the editor of the Financial Times: one giant leap for UK temps
20.03.02: Commission strikes right note on agency work
 
Federation of European Employers (FedEE)
Homepage
21.03.02: Proposed measures to protect temps
 
Union of Industrial and Employers Confederations of Europe (UNICE)
Homepage
03.05.00: UNICE to start talks on temporary agency work
16.03.01: UNICE blames ETUC for stalemate in negotiations on temporary agency work
21.03.01: UNICE calls on ETUC to continue negotiations on temporary agency work
21.05.01: UNICE regrets end of negotiations on temporary agency work
21.03.02: Temporary agency work: Commission Directive is ill-conceived
 
Euro-CIETT -Uni Europa
Homepage
03.07.01: Joint declaration on the Sectoral Social dialogue on agency work
22.03.02: Commission Directive on agency work: Euro-CIETT disappointed with its content and impact on job creation
 
United Kingdom: Trade Union Congress
Homepage
20.03.02: TUC welcomes proposed EU Directive on agency workers
Permanent rights for temporary workers
 
United Kingdom: Confederation of British Industry
Homepage
20.03.02: CBI attacks 'unworkable' EU law on agency temps
 
News Organisations
 
BBC News Online
25.10.01: Rights for temporary workers
18.02.02: Q&A: Your rights as a temp
18.02.02: Bosses warn against rights for temps

Further and subsequent information on the subject of this In Focus can be found by an 'Advanced Search' in European Sources Online by inserting 'temporary agency workers' in the keyword field.

Helen Bower
Compiled: 23 March 2002

The European Commission proposed a new Directive on 20 March 2002 that would establish a minimum EU wide level of protection for temporary workers.

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