Agency Workers: Moving Forward? Professor Jeff Kenner School of Law University of Nottingham

Agency workers – problems with the existing law triangular relationships (agency, worker, end-user) – do not fit with two-sided employment contractstriangular relationships (agency, worker, end-user) – do not fit with two-sided employment contracts difficult to imply a contract of employment with the end-user: James v L.B. Greenwichdifficult to imply a contract of employment with the end-user: James v L.B. Greenwich who is the employer? Relevant also for ‘worker’ statuswho is the employer? Relevant also for ‘worker’ status agency workers – often excluded from employment rights/benefits offered to directly employed workersagency workers – often excluded from employment rights/benefits offered to directly employed workers lack of continuity between assignments – restricts career progression – training, child-carelack of continuity between assignments – restricts career progression – training, child-care

EU Directive on Temporary Agency Work proposed 2002 – political deadlock until 2008 – UK Tripartite Agreement (TA) of 22 Mayproposed 2002 – political deadlock until 2008 – UK Tripartite Agreement (TA) of 22 May Council Common Position (CP) – 15 Sept – regarded by the UK as compatible with the TACouncil Common Position (CP) – 15 Sept – regarded by the UK as compatible with the TA CP approved without amendment by the European Parliament – 22 OctoberCP approved without amendment by the European Parliament – 22 October awaiting publication – 3 years to implementawaiting publication – 3 years to implement UK committed to implementing the Directive “in the next Parliamentary session”UK committed to implementing the Directive “in the next Parliamentary session”

UK Tripartite Agreement – Government, CBI, TUC – 22 May 2008 agency workers entitled to ‘equal treatment’ after 12 weeks in a given jobagency workers entitled to ‘equal treatment’ after 12 weeks in a given job ‘at least’ - ‘basic working and employment conditions’ applicable as if directly recruited to the same job – not occupational social security‘at least’ - ‘basic working and employment conditions’ applicable as if directly recruited to the same job – not occupational social security consultation over dispute resolution mechanisms, implementation via collective agreements, ‘anti-avoidance’ measuresconsultation over dispute resolution mechanisms, implementation via collective agreements, ‘anti-avoidance’ measures

Key features of the Directive scope – temporary agency workers, agencies, end-usersscope – temporary agency workers, agencies, end-users aim – protection of temporary agency workers, improve the quality of temporary agency workaim – protection of temporary agency workers, improve the quality of temporary agency work equal treatment principle – basic working and employment conditions, proving discriminationequal treatment principle – basic working and employment conditions, proving discrimination variations/derogations – compatibility of the TAvariations/derogations – compatibility of the TA access to employment, collective facilities and vocational trainingaccess to employment, collective facilities and vocational training penalties for non-compliancepenalties for non-compliance

Scope “workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction” – Art. 1(1)“workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction” – Art. 1(1) any person “protected as a worker” under national law – Art. 3 – economic dependency on the agencyany person “protected as a worker” under national law – Art. 3 – economic dependency on the agency broad interpretation of “temporary work agency” and “end user” – agency is deemed to be employer but the end-user must also comply (see access to collective facilities, penalties)broad interpretation of “temporary work agency” and “end user” – agency is deemed to be employer but the end-user must also comply (see access to collective facilities, penalties) vocational training/retraining – possible exemptionvocational training/retraining – possible exemption

Aim – Art. 2 – “flexicurity” “to ensure the protection of temporary agency workers” and“to ensure the protection of temporary agency workers” and “to improve the quality of temporary agency work”“to improve the quality of temporary agency work” NB: reference point for permitted variations/derogations and allegations of ‘misuse’ How? By ensuring that the principle of equal treatment applies to temporary agency workers and by recognising agencies as employersHow? By ensuring that the principle of equal treatment applies to temporary agency workers and by recognising agencies as employers job creation and “flexible forms of working”job creation and “flexible forms of working”

The principle of equal treatment – Art. 5(1) “The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.”

“basic working and employment conditions” – Art. 3 Legally binding general provisions “in force in the user undertaking” relating to: the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays;the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays; paypay

Variations to and derogations from the equal treatment principle exemption for temporary agency workers with a permanent contract with the agency who continue to be paid between assignments – Art. 5(2) BUT see TA – must not be used to “evade the aims of the Directive”exemption for temporary agency workers with a permanent contract with the agency who continue to be paid between assignments – Art. 5(2) BUT see TA – must not be used to “evade the aims of the Directive” collective agreements – “arrangements which may differ” from the equal treatment principle while respecting “overall protection” –Art. 5(3) – allows for variation not derogationcollective agreements – “arrangements which may differ” from the equal treatment principle while respecting “overall protection” –Art. 5(3) – allows for variation not derogation

Variations to and derogations from the equal treatment principle “Providing that an adequate level of protection is provided for temporary agency workers”, Art. 5(4) permits “concluded” agreements with social partners at national level to establish arrangements concerning the basic working and employment conditions “which derogate from” the principle of equal treatment – may include a qualifying period for equal treatment“Providing that an adequate level of protection is provided for temporary agency workers”, Art. 5(4) permits “concluded” agreements with social partners at national level to establish arrangements concerning the basic working and employment conditions “which derogate from” the principle of equal treatment – may include a qualifying period for equal treatment Is the TA compatible with this derogation?Is the TA compatible with this derogation?

“preventing misuse” – Art. 5(5) (of variations and derogations) Member States shall take appropriate measures with a view to “preventing misuse” in the application of (the variations and derogations) in Art. 5Member States shall take appropriate measures with a view to “preventing misuse” in the application of (the variations and derogations) in Art. 5 in particular “preventing successive assignments designed to circumvent [the Directive]”in particular “preventing successive assignments designed to circumvent [the Directive]” see the TA: “appropriate anti-avoidance measures” relating to “repeat contracts for the same worker”see the TA: “appropriate anti-avoidance measures” relating to “repeat contracts for the same worker” relevance of the Adeneler case (ECJ) – “abuse” of successive fixed-term contractsrelevance of the Adeneler case (ECJ) – “abuse” of successive fixed-term contracts

Access to employment, collective facilities and vocational training – Art. 6 information about vacancies with the user undertakinginformation about vacancies with the user undertaking no post-assignment restrictionsno post-assignment restrictions no agency chargesno agency charges access to amenities or collective facilities in the user undertaking, in particular, any canteen, child-care facilities and transport services “under the same conditions” as directly employed workers unless the difference in treatment is “justified by objective reasons”access to amenities or collective facilities in the user undertaking, in particular, any canteen, child-care facilities and transport services “under the same conditions” as directly employed workers unless the difference in treatment is “justified by objective reasons” improve access to training, child-careimprove access to training, child-care

Penalties for non-compliance – Art. 10 applies to agencies and end usersapplies to agencies and end users adequate administrative or judicial procedures must be available to enable the obligations deriving from the Directive to be enforcedadequate administrative or judicial procedures must be available to enable the obligations deriving from the Directive to be enforced penalties must be “effective, proportionate and dissuasive”penalties must be “effective, proportionate and dissuasive” must ensure that workers and/or their representatives have adequate means of enforcing obligationsmust ensure that workers and/or their representatives have adequate means of enforcing obligations

Problems employment status must still be addressed in every case – does not alter national definitionsemployment status must still be addressed in every case – does not alter national definitions continuity issues between assignments – see Pratercontinuity issues between assignments – see Prater uncertainty when seeking to enforce obligations – who is in breach – the agency or the end user, or both?uncertainty when seeking to enforce obligations – who is in breach – the agency or the end user, or both? proving equal treatment – ‘same job’ – what are the ‘terms and conditions’ of directly employed staff? - job evaluation, hypothetical comparator? – no scope for objective justification?proving equal treatment – ‘same job’ – what are the ‘terms and conditions’ of directly employed staff? - job evaluation, hypothetical comparator? – no scope for objective justification? different test for challenging denials of access to collective facilities – objective justificationdifferent test for challenging denials of access to collective facilities – objective justification

More problems! 12 week rule – basis for litigation if UK implementing regs. do not provide adequate safeguards against “misuse” of repeat contracts – also, possible sex discrimination challenge?12 week rule – basis for litigation if UK implementing regs. do not provide adequate safeguards against “misuse” of repeat contracts – also, possible sex discrimination challenge? scope – broadening protection of agency workers – “implementation of more favourable provisions” – training, pensions, redundancy payments?scope – broadening protection of agency workers – “implementation of more favourable provisions” – training, pensions, redundancy payments? legislative overlap with other areas of “equal treatment” – complex jigsaw of legislationlegislative overlap with other areas of “equal treatment” – complex jigsaw of legislation posted agency workers – see recital 22 of the preambleposted agency workers – see recital 22 of the preamble