Transcript Development of the triangular or fixed

FLEXWORK RESEARCH CONFERENCE,
AMSTERDAM, 24-25/10/2013
DEVELOPMENT OF THE TRIANGULAR
OR FIXED-TERM EMPLOYMENT RELATIONSHIP
TEMPORARY AGENCY WORK
IN THE EUROPEAN UNION
IMPLEMENTATION OF THE DIRECTIVE
2008/104/EC IN THE EU MEMBER STATES
Coralie Guedes, University of Lyon, France
Isabelle Schömann, ETUI, Belgium
C.Guedes-I.Schö[email protected]
STATE OF TRANSPOSITION
• Transposition done in 21 Member States (Denmark
since July 2013) + Norway
• Sweden and Cyprus still under infringment
procedure
• No transposition foreseen in Poland, France and
Luxembourg
• Lack of information regarding implementation in
Slovakia and Slovenia
C.Guedes-I.Schö[email protected]
TRANSPOSITION:
NON-CONTROVERSIAL ISSUES
• Scope
• Definition of certain concepts:
 Assignment: exists in most Member States (except Belgium
for example)
 Employer: the agency in most Member States (as the
Directive requests)
 3 exceptions: UK , Ireland and Czech Republic
• Minimum requirement
C.Guedes-I.Schö[email protected]
TRANSPOSITION:
MAIN DIFFICULTIES AND LOOPHOLES
• Definition of concepts: working conditions / pay /
general interest
• Review of restrictions and prohibitions
• Principle of equal treatment
• Access to collective rights
• Effective, proportionnate and dissuasive measures
C.Guedes-I.Schö[email protected]
DEFINITION OF CONCEPTS
• Working conditions: great variety but national definitions take over
most of the elements listed in the Directive / this issue is of utmost
importance as it determines the scope of the principle of equal
treatment
• Pay: definition left to Member States = both broad (Belgium,
Luxembourg, Finland, etc) or narrow definition (Austria, Ireland) / a
broad definition set at national level would guarantee better
protection for agency workers
• General interest: left to the interpretation of the CJEU, needs to be
broad to leave a margin of interpretation to Member States /
restrictions and prohibitions of TAW need to be justified on the ground
of general interest / its definition will have an impact on the reviewing
process
C.Guedes-I.Schö[email protected]
REVIEW OF RESTRICTIONS AND
PROHIBITIONS
• Must be justified on the ground of general interest, which
definition will condition the process of reviewing
• Examples of restrictions: prohibited in certain sectors,
only for particular and short-term task, waiting period
between two assignments, etc.
• Reported to be in progress in various Member States (ex:
Finland, Austria)
• Some of the restriction have been removed in certain
Member States (ex: Spain / removal via collective
bargaining, Romania / no more restriction regarding
duration of the assignment, Italy / new ground for TAW =
underpriviledged workers)
C.Guedes-I.Schö[email protected]
PRINCIPLE OF EQUAL TREATMENT:
SCOPE
• Flagship measure, thus implemented widely but
major variations in scope of application / the
effectiveness of the Directive itself depends on the
scope of the principle of equal treatment
 Broad scope (ex: Poland, Czech Republic, Austria)
 Narrow scope (ex: France)
 Implementation of derogations:
 Nordic derogation (ex: Austria)
 German derogation (ex: Germany)
 Qualifying period (ex: UK)
• Occupational social security seems to be included
in the scope of the principle of equal treatment in
most countries
C.Guedes-I.Schö[email protected]
PRINCIPLE OF EQUAL TREATMENT:
MEASURES PREVENTING ABUSES
• Limitation of the duration of the assignment (ex:
Poland, Greece, France)
• Waiting period between two assignments (ex:
Luxembourg, UK)
• Others: contract designed for a specific task
(Poland), limitation of extension (Italy), series of
similar assignments = one single assignment (Ireland)
C.Guedes-I.Schö[email protected]
ACCESS TO COLLECTIVE RIGHTS
• Access to employment, collective facilities and
vocational training: implemented in many Member
States; Main problematic issue: access to training
• Representation:
• at user undertaking (ex: Belgium, the Netherlands,
Luxembourg),
• at the agency (ex: Denmark), at both (ex: Austria, France)
• Source of concern in various Member States (ex: Poland,
Slovenia, Spain, Portugal)
• Information and consultation: already in place in
many Member States, but no transposition in
Portugal, Slovenia.
C.Guedes-I.Schö[email protected]
EFFECTIVE, PROPORTIONNATE AND
DISSUASIVE SANCTIONS
• Vary widely among Member States (mainly fines,
withdrawal of the licence, requalification)
• In some Member States, transposition has been an
opportunity to strengthen sanctions (ex: Austria)
• Either User company or Agencies can be held
liable, and sometimes both (ex: Luxembourg)
C.Guedes-I.Schö[email protected]
LATEST TRANSPOSITION (1)
• Denmark: Parliament adopted the Act of Agency Work on 30
May 2013, implementing Directive 2008/104/EC
• Belgium:
 New law came into force on September 1st, 2013:
 New ground for TAW: Integration
 Restriction regarding consecutive day contract (prove the need for
flexibility)
 New obligation to provide workers representatives or competent
authorities information on the use of TAW
 Compliance with the Directive (right of access to collective
facilities, protection of pregnant women and nursing mothers, equal
treatment for men and women, prohibition of discrimination,
information on vacant post)
C.Guedes-I.Schö[email protected]
LATEST TRANSPOSITION (2)
• Belgium:
 Cross-industry Collective Bargaining Agreement No.108, dated 18
July 2013
 Came into force on September 1st (moniteur belge July 16th)
 New ground for use of TAW (so-called «inflow»)
 Consecutive day contract (provethe need for flexibility)
 Extension of information obligations of the employer to trade unions
 Phasing out of the 48-hour rule for establishing contracts for
temporary workers
C.Guedes-I.Schö[email protected]
ARTICULATION BETWEEN TAW
DIRECTIVE / POSTING DIRECTIVE /
ENFORCEMENT DIRECTIVE
• Are cross-border temporary agency workers also
posted workers?
• Does the minimum protection for posted workers
correspond to that provided to temporary agency
workers on cross-border assignments?
• What about the principle of equal treatment?
• What would the Enforcement Directive on the
Posting of workers Directive bring to the debate?
C.Guedes-I.Schö[email protected]
POSSIBLE REVISION OF THE DIRECTIVE
• Transposition: Report of the work of the Expert
Group(August 2011).
• The TAW Directive has been pointed out as one of
the most burdensome EU legislative acts for SMEs
(SWD(2013)60 final)
• The Directive will be subjected to an evaluation in
the frame of the Refit /fitness check (COM(2013)685
final) /Report of the EU Commission (Oct. 2013)
C.Guedes-I.Schö[email protected]
TEMPORARY AGENCY WORK
IN THE EUROPEAN UNION
http://www.etui.org/Publications2/Reports/Temporary-agency-work-in-theEuropean-Union
THANKS YOU
FOR YOUR ATTENTION
Coralie Guedes, University of Lyon
[email protected]
Isabelle Schömann, ETUI
[email protected]
C.Guedes-I.Schö[email protected]