IMPLEMENTATION OF THE DIRECTIVE 2008/104/EC IN THE EU MEMBER STATES TEMPORARY AGENCY WORK IN THE EUROPEAN UNION FLEXWORK RESEARCH CONFERENCE, AMSTERDAM, 24-25/10/2013 DEVELOPMENT OF THE TRIANGULAR OR FIXED-TERM EMPLOYMENT RELATIONSHIP Coralie Guedes, University of Lyon, France Isabelle Schömann, ETUI, Belgium

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

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

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

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

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)

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

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)

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.

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)

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 1 st, 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)

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

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?

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)

TEMPORARY AGENCY WORK IN THE EUROPEAN UNION European-Union Coralie Guedes, University of Lyon Isabelle Schömann, ETUI THANKS YOU FOR YOUR ATTENTION