Richtlijn 2008/104 - Uitzendarbeid

Equal treatment of temporary agency workers

European legislation improves the protection of temporary agency workers by ensuring equal treatment concerning the basic working and employment conditions. It establishes a framework for the use of agency work to contribute effectively to job creation and to the development of flexible forms of working.

ACT

Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work.

SUMMARY

Temporary agency workers are employed by a temporary-work agency and temporarily placed at the disposal of user undertakings . In terms of the basic working and employment conditions, the temporary agency workers and the workers recruited directly by the undertaking for the same job are entitled, as a general rule, to equal treatment.

This Directive applies to public and private temporary-work agencies and user undertakings engaged in economic activities whether or not they are operating for gain. After consulting social partners, Member States may decide that the Directive does not apply to employment contracts within certain public programmes, specifically vocational training, integration or retraining.

Working and employment conditions

The principle of equal treatment applies to the basic working and employment conditions relating to:

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  the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;
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  pay.

Workers also receive equal treatment with regard to:

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  the protection of pregnant women and nursing mothers;
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  the protection of children and young people;
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  equal treatment for men and women;
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  protection against discrimination based on sex, race or ethnic origin, religion, beliefs, disabilities, age or sexual orientation.

However, Member States may authorise the social partners to define specific working and employment conditions for agency workers.

After consulting the social partners, Member States may also provide the option to derogate from the principle of equal pay for agency workers who have a permanent contract of employment (PCE) and who continue to be paid between two assignments.

Access to employment, training and services

Temporary agency workers must be free to conclude an employment contract with the user undertaking at the end of their assignment. They must therefore be kept informed of vacancies for permanent employment. Their participation in training programmes must be encouraged, whether within the temporary-work agency or the user undertaking.

Access to the amenities and collective services of the user undertaking (specifically canteens, childcare facilities and transport) must be open to them, and in principle under the same conditions as other workers.

Representation and information

Bodies representing workers are constituted according to a threshold calculated using the number of employees in an undertaking or establishment. Agency workers are taken into account in this calculation within the temporary-work agency which employs them, the user undertaking to which they are assigned or both companies.

When a user undertaking presents the employment situation to the bodies representing workers, it must provide information on the use of agency workers.

Penalties

Member States must lay down effective, proportionate and dissuasive penalties in the event of infringements of national provisions enacted under this Directive. They should also ensure that legal or administrative recourse exists in case of breaches of the obligations of this Directive.

Context

Member States were to review the restrictions or prohibitions applicable to temporary agency work by 5 December 2011 at the latest. These limitations may be justified only on grounds of the general interest.

REFERENCES

RELATED DOCUMENTS

Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 2008/104/EC on temporary agency work. [ COM(2014) 176 final of 21.3.2014 - not published in the Official Journal].

The Commission’s report concludes that, in general, the Directive has been correctly implemented and applied but that its twofold goal has not yet been fully fulfilled. Indeed, on the one hand, the extent of the use of certain derogations from the principle of equal treatment may, in specific cases, have led to a situation where the application of the Directive has no real effects upon the improvement of the protection of temporary agency workers. On the other hand, the review of restrictions and prohibitions on the use of temporary agency work has served, in the majority of cases, to legitimate the status quo, instead of giving an impetus to the rethinking of the role of agency work in modern, flexible labour markets.

The Commission will continue to monitor the application of the Directive and work closely with Member States and social partners to ensure that its goals are achieved. Given the fact that the Directive has been implemented by the Member States recently and that more time is needed to accumulate experience in its application, the Commission considers that no amendments are necessary at this stage.

Last updated: 17.06.2014

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