Agency workers may soon be entitled to the same pay and leave as regular staff. Janet Gaymer outlines the proposal
On 20 March, the European Commission published a proposal for a directive which will regulate the working conditions of agency workers described as temporary workers in Eurospeak. The proposal will have to be agreed by the Council of Ministers and the European Parliament before it becomes a directive and then countries will be given a period (usually two years) to implement any new legislation.
The proposal follows a failure on the part of unions and employers to agree draft rules on temporary agency work after a year of negotiations despite already having come to an agreement on rules for part-time and fixed-term work.
The aim is to set out general principles of equal treatment for agency workers, offering them the same pay and conditions as regular employees once they have been working for at least six weeks in an organisation.
Temporary work has been increasing steadily in Europe for 10 years. However, it is spread unevenly. In 1999, 80% of temporary workers were working in four member states, the Netherlands, France, Germany and the UK where temporary workers accounted for 2.1% of the total workforce. The EU recognises the importance of flexibility within its employment strategy and wants to protect and extend the rights of temporary workers.
The proposal covers the three-way relationship between the temporary worker, the agency and the client or end user. The temporary worker is to be compared with a regular worker who holds a job that is similar or identical to the one they are doing taking into consideration seniority, qualifications and skills.
In principle, agency workers will have the same right to paid holidays, maternity and sick leave as the comparable worker, thus creating a basic minimum of protection throughout Europe.
In addition, temporary workers must have the chance to apply for permanent employment through information about vacant posts, and there should be nothing to stop them concluding a permanent contract with the client.
The temporary agency and the client must ensure that training is available which will enhance career development and employability. Representative bodies, such as works councils, in the client company must be informed about the employment of temporary workers and these temporary employees will also have a right to be represented. These are the basic rules that everyone must comply with but more favourable legal protection for temporary workers is permitted.
The aim is to prevent a two-tier workforce and to ensure that those who are best suited to providing flexible cover are not put off by less favourable treatment. There are some exceptions: if there is a collective bargaining agreement in force, if the worker has an open-ended contract with the agency; or if for any reason the worker is not an equivalent replacement in terms of education, experience or seniority, as might occur if a student replaced an employee for two weeks over the summer.
The proposal will mean more work for agencies in terms of paperwork. It has been suggested that the proposal will make it harder for employers to find extra staff to cover sudden busy periods. Employers will also have to check how information is distributed, for example, in relation to vacancies and what facilities are offered to temporary workers.
There may also be an increase in wage costs both for agencies and clients, although by the time the proposals take effect many employers will have become used to the principle of non-discrimination between regular and non-regular workers.
One thing is certain the proposal will cause many employers to review the make-up of their workforces and agencies to take a fresh look at their terms and conditions of business and marketing budgets.
Finally, it is worth remembering that in the UK 80% of the activities of temporary agencies are in the services and public sectors, and that the directive will apply to undertakings whether or not they are operating for profit.
Janet Gaymer is senior partner at Simmons & Simmons
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