Joint Project on setting up a European Observatory on cross- border activities

within temporary agency work

Steering Committee Meeting

Brussels 3 December 2009

Desk research

• Report stocktaking documents and studies basically at European level.

• Analysing some collective agreements at national level.

• Main focus on cross-border agency work activities: – Cross-border temporary agency work – the posting of workers within a triangular relationship in

the framework of a provision of services.

• Distinguishing and clarifying both situations/ models of cross-border TAW:

• Bringing some ECJ case law.

Two main sources: - Directive 96/71/EC “posting of workers” (under discussion)- new Directive 2008/104/EC (still to be implemented)

Posting workers is based on the cross-border provision of services art. 56 new Lisbon Treaty (and also free movement of workers-art. 48 EC Treaty)

Different scope: - Posting of workers directive (PWD) has a cross-border scope - TAW directive has a national one.

Importance of CA: art 5(3) y (4) of TAW directive

Legal frameworkLegal framework

Legal framework (II)

PWD explicitly refers to TAW:

– Scope: art 1. 3 c)– Guarantee of application of terms and conditions of employment to posted

workers (art. 3. 1 d) and 3. 9

TAW directive refers to PW (recital 22)

Other principles and provisions indirectly:

– provisions on equality of treatment– application of more favourable conditions

At national level, four main regulatory clusters of restrictive measures to agency work to be discussed when TWA directive should be implemented

Relevant role of collective agreements at national level

Hard core rules to be respected in the destination MS (Art. 3.1. PWD):

a) maximum work periods and minimum rest periods;

b) minimum paid annual holidays;

c) the minimum rates of pay, including overtime rates;

d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;

e) H&S at work;

f) protective measures for pregnant women or women who have recently given birth;

g) equality of treatment between men and women and other provisions on non-discrimination.

- Obligation to apply (Art. 5 TAW directive) to the basic employment conditions. 3 derogations:

a)Workers paid in the time between assignments

b)By colllective agreements

c)Specific treatment of social security schemes

Principle of equal treatment

Posted workers within a triangular relationship framework

Posted TAW workers

• The transnational posting of workers by a temporary work agency constitutes a provision of services: law applicable at European level is the Directive 96/71/EC.

• PWD is concerned with the respect of certain labour rights in the country of destination: MS are obliged to ensure that posted workers enjoy certain minimum protective standards in force in the MS in whose territories the work is being carried out during the period of posting.

• Nor reliable data available on the number of posted workers in the EU0 (estimation of 4% of the EU working-age population)

• At statistical level, no exact figures for the number of TA Workers (see WLRI survey)

Cross-border agency work

Cross-border agency work (II)

• The proportion of cross-border workers or temporally migrant workers hired by TWAs in the Member State of destination is much greater than that of cross-border posted workers.

• Need to encourage and promote the transparency of these collective migratory movements

• TWA collective bargaining in the Netherlands has begun to establish a special set of rules for those temporary workers not residing in the country,

• There is still room for social partners both at national and European level to reach agreements in order to improve the way in which the movement of workers is carried

Other related topics

National collective agreements analysed do not deal with the topic of posted agency workers, except in the case of the Netherlands.

Extraterritoriality (outside the EU): the Directive is implemented in the EEA space. Other variations are possible.

Complex relations: application of international regulations (Rome convention)

The issue of nationals of third countries: ECJ judgement

Application of Social Security: Regulation No. 1408/71 (Art. 14), to be substituted by Regulation 883/2004 on May, 2010: 2 years will be the maximum period of linking to the SS system of origin. Some requirements must be fulfilled concerning constancy and significance of the activity of the undertaking in the MS of origin

SS implications: to be explored in practice

Types of contract: most are of fixed-term duration.