Towards equal treatment of temporary agency workers?

Numerous employment committee MEPs express dissatisfaction with the implementation of the temporary agency work directive

By Hendrik Meerkamp

21 Nov 2014

Please note that this does not constitute a formal record of the proceedings of the meeting. It is dependent on interpretation and acts as an unofficial summary of the debate.

On November 20, the European Parliament’s Committee on Employment and Social Affairs met for an exchange of views with Mr Armindo Silva, Director for Employment, social legislation and social dialogue in the European Commission’s Directorate-General for Employment, social affairs and inclusion (DG EMPL), on the “Report from the Commission on the application of Directive 2008/104/EC on temporary agency work”. Please find a summary of the debate below.

The representative from the European Commission, Armindo Silva, Director for Employment, social legislation and social dialogue in the Directorate-General for Employment, social affairs and inclusion (DG EMPL), took the floor first, delivering a presentation that introduced the committee members to:

  1. the topic of temporary agency work and the context of the EU directive 2008/104 on temporary agency work;
  2. the European Commission’s report of March 21 2014 on the application of Directive 2008/104 on temporary agency work, which the European Commission was required to draw up under the provisions of the directive;
  3. the next steps of action intended by the European Commission in matters of temporary agency work.

In this context, Mr Silva made the following main points:

  • The directive 2008/104 seeks to establish a fair balance between two goals: improving the protection of agency workers (by establishing equal treatment) and supporting and recognising the positive role of agency work in bringing flexibility to the labour market (by encouraging the removal of excessive restrictions on this type of work).
  • The main provisions of the directive concern:
    • Articles 3 + 5(1) on equal treatment in user undertakings as regards basic working and employment conditions of temporary workers vis-à-vis permanent staff members, most notably in matters of pay and working time;
    • Article 5 on derogations from equal treatment allowed under certain conditions;
    • Article 4 on a required review by Member States of potentially unnecessary restrictions and prohibitions on the use of agency work at the national level;
    • Article 6 on a better access of agency workers to permanent employment, facilities in user undertakings, and training;
    • Article 7 on the representation of agency workers and information of workers’ representatives in companies.
  • All Member States have transposed the directive by now.
  • The European Commission is now aware of any specific difficulties in the implementation of the directive in the Member States when it comes to the following areas of the directive: scope; definitions; access to employment, collective facilities and vocational training; representation of agency workers; information of workers’ representatives.
  • The principle of equal treatment is recognised by all Member States but 12 of them allow for derogations under certain conditions (Austria, Bulgaria, Germany, Denmark, Finland, Hungary, Ireland, Italy, Malta, Netherlands, Sweden, and the UK).
  • All Member States have informed the Commission of their position in matters of their review of restrictions and prohibitions on use of agency work. 24 of them have carried out a review while 3 Member States (Ireland, Malta, and the UK) have no specific restrictions in place and one did not review its restrictive measures.
  • Most Member States did not report any significant additional regulatory costs for national authorities, agencies or user companies, while in the view of employers, restrictions have not been sufficiently reviewed, so that there are still unnecessary costs for the economy.
  • In general, even though the directive seems to have been correctly implemented and applied, its twofold goal has not yet been fully achieved: The principle of equal treatment (the extent of the use of certain derogations may, in specific cases, have led to a situation where the application of the directive has no real effects on the improvement of the protection of agency workers) and a reduction of restrictions and prohibitions (this review has served in a number of cases to legitimate the status quo instead of giving impetus to rethinking the role of agency work in modern, flexible labour markets).
  • The European Commission will continue to monitor the application of the directive closely, ensuring that its goals are achieved, in close contact with Member States and EU-level social partners.
  • Infringement proceedings against Member States will be initiated where necessary.
  • If specific regulatory burden is identified as an obstacle to growth and competitiveness, this may be featured in the country-specific recommendations in the context of the European Semester.
  • There is no need to amend the directive at this stage, but rather to ensure its proper implementation.

Please note that the full presentation is available here.

Elisabeth Morin-Chartier (EPP, FR) had four questions. First, how many temporary employees can use their work to make the step to a permanent, regular employment relationship; second, how the number of derogations from equal treatment provisions in the directive can be reduced; third, how the directive interlinks with precariousness in employment relationship for women; and fourth, what the costs the directive has on the economy.

Mr Silva replied to the first question that the primary objective of directive is to ensure equal treatment for temporary workers compared to permanent staff member of companies and that therefore in the context of the report no specific economic assessment was made on the role of temporary agency work as an instrument for workers to make the step into permanent employment relationships.

In regard to Ms Morin-Chartier’s second question, Mr Silva answered that certain derogations are specifically provided for in the directive and that while there is no intention to reduce the scope of these provisions, the aim must be to ensure that derogations are not abused as a pretext for unequal treatment for temporary workers vis-à-vis the permanent staff of companies.

On her third question, he answered that in the context of the report no study was carried out with regards to a female dimension of the directive.

Concerning the final question, Mr Silva said that concerns have been raised by some employers about the scope of Member States’ restrictions and prohibitions on use of agency work but not on the costs of the directive as such.

Siôn Simon (S&D, UK) said that as long as 15 months ago the UK Trade Union Congress (TUC) submitted a formal complaint to the European Commission about shortcomings in the implementation of the directive in the UK but that it does not have received an answer so far. Stressing that this continued silence by the European Commission is unacceptable, Mr Simon wanted to know why there has been such a long delay in the procedure and when exactly the TUC can expect an answer.

Mr Silva confirmed that the European Commission received the complaint by the TUC referred to by Mr Simon. He elaborated that the case concerns the allegedly abusive application of equal treatment derogation clauses of the directive in the UK and that the European Commission has been in contact with UK authorities to gather more information about this. He said that the European Commission has now all the information it needs in order to decide whether to open an infringement procedure against the UK or to close the case. He concluded by saying that he is “bound by confidentiality” in this case and cannot provide further detail to Mr Simon.

Simon Siôn, unhappy with the lack of preciseness and detail contained in the answer, declared that he does not understand how the European Commission can be bound by confidentiality in this case, given that it is the role of the democratically elected European Parliament to scrutinise the European Commission’s doings. He added that, moreover, the case concerns a formal complaint that the TUC itself even reported about this via own press releases and that therefore he is entitled to know further details. In this context, he reiterated his request to know when the Commission will issue a formal answer to the TUC and wanted to know on the basis of which the statute the European Commission can claim to keep this information undisclosed.

Mr Silva replied that the TUC itself asked for a confidential treatment by the European Commission and that it is not up to the European Commission to decide which press releases the TUC issues.

Siôn Simon (S&D, UK), still unsatisfied with the answer, requested a formal, written statement by Mr Silva on the statute on the basis of which the European Commission can keep detailed information on this case undisclosed.

Mr Silva replied that he will provide Mr Simon with such a statement.

Jutta Steinruck (S&D, DE) had a number of questions. These included, most notably: First, if in the context of the report any data collection was performed about whether temporary agency might actually often not be a stepping stone in permanent employment relationships but a represent an ongoing vicious cycle of precariousness for workers; second, how the European Commission intends to improve the equal treatment of temporary workers compared to permanent staff member of companies to acceptable levels; third, whether the European Commission agrees that temporary agency work is a spreading, negative trend in European labour markets; and fourth, whether the European Commission considers that the inclusion and consultation of the social partners is really what it should be according to the directive.

Mr Silva, answering to the first question, reiterated that the prime objective of the directive is not to restrict temporary agency work but to legitimatise and recognise the role of temporary agency work in the labour market and to set clear rules for this, and that in this context no special data collection was performed as asked about by Ms Steinruck.

On the second and third question, Mr Silva admitted that the directive is not working perfectly yet but that this does not make a modification of the directive necessary. Instead, he said, the objective should be to ensure that derogations from equal treatment provisions under the existing directive are not abused. He added that in cases of abuse, the European Commission can opt for follow-up action through infringement procedures or in the context of the European Semester and country-specific recommendations (CSRs).

Finally, with regards to the question on the involvement of social partners in the regulation of temporary agency work, Mr Silva said that the EU social partners take part in relevant expert group meetings with the European Commission and that Member States are also urged to hear the social partners at the national level. He added that, moreover, social partners at national level can also act at the EU-level through their membership in EU-level social partner organisations.

Ole Christensen (S&D, DK) said that the derogations referred to earlier in the debate clearly contradict with the principle of equal treatment. In this context, he wanted to know if there is a possibility to amend the directive in order to eliminate these derogations.

Mr Silva reiterated that the European Commission does not see any justification to amend the directive. He added that there would be substantial resistance to this in the Council of Ministers, too.


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