Agency Workers: Moving Forward?

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

2. Agency workers – problems with the existing law • triangular 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. Greenwich • who is the employer? Relevant also for ‘worker’ status • agency workers – often excluded from employment rights/benefits offered to directly employed workers • lack of continuity between assignments – restricts career progression – training, child-care

3. EU Directive on Temporary Agency Work • proposed 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 TA • CP approved without amendment by the European Parliament – 22 October • awaiting publication – 3 years to implement • UK committed to implementing the Directive “in the next Parliamentary session”

4. UK Tripartite Agreement – Government, CBI, TUC – 22 May 2008 • agency 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 • consultation over dispute resolution mechanisms, implementation via collective agreements, ‘anti-avoidance’ measures

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

6. 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) • any 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) • vocational training/retraining – possible exemption

7. Aim – Art. 2 – “flexicurity” • “to ensure the protection of temporary agency workers” and • “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 employers • job creation and “flexible forms of working”

8. 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.”

9. “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; • pay

10. 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” • collective agreements – “arrangements which may differ” from the equal treatment principle while respecting “overall protection” –Art. 5(3) – allows for variation not derogation

11. 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 • Is the TA compatible with this derogation?

12. “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. 5 • 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” • relevance of the Adeneler case (ECJ) – “abuse” of successive fixed-term contracts

13. Access to employment, collective facilities and vocational training – Art. 6 • information about vacancies with the user undertaking • no post-assignment restrictions • no 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” • improve access to training, child-care

14. Penalties for non-compliance – Art. 10 • applies to agencies and end users • adequate 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” • must ensure that workers and/or their representatives have adequate means of enforcing obligations

15. Problems • employment status must still be addressed in every case – does not alter national definitions • continuity issues between assignments – see Prater • 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? • different test for challenging denials of access to collective facilities – objective justification

16. 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? • 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 legislation • posted agency workers – see recital 22 of the preamble