Temporary Agency Work Directive 2008

The Temporary Agency Work Directive^[1] is an EU Directive agreed in November 2008 which seeks to guarantee those working through employment agencies equal pay and conditions with employees in the same business who do the same work. It is the third piece of legislation in the European Union's employment law package to protect atypical working (the others being for part-time workers and fixed-term workers). Though it was proposed in 2002, the British, German, Danish and Irish governments blocked its enactment until 2008.

Provisions

The core of the directive is equal rights on "basic working and employment conditions". Under Art.3(1)(f) These conditions are pay, and

the duration of working time, rest periods, night work, paid holidays and public holidays
work done by pregnant women and nursing mothers, children and young people
action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

However, Art. 5 (4) allows for Member States to derogate from the principle of equal treatment, provided an 'adequate level of protection is provided'. This could be in the form of a qualifying period, before which agency workers would not be entitled to equal treatment. The directive made changes to national law in any further employment rights since Article 2 now designates employment agencies as the employer. This is unproblematic for most countries, which guarantee substantive rights to all people at work.

Purpose

As with all EU Directives, the purpose of the Agency Worker Directive is to harmonise the law across the common market. The economic function this serves is to prevent unfair competition between different member states. Sometimes called social dumping, the idea is that, for example, if Finland has loose employment protection and Ireland has strong employment protection, companies will shift their operations to the Finland - not because Finland is a more efficient country to do business and Ireland is inefficient - just because they can pay less. Harmonised laws prevent a "race to the bottom" where every country tries to deregulate to attract business, and, theoretically, all end up losing. The social function is to ensure a higher standard of living and quality of life, consistent with the aims of the Treaty of the European Union.^[2]

Background

The original proposal for a directive was made in 2002, but was itself shelved, because of the UK government's consistent opposition to agency regulation, in the interests of labour market flexibility. According to newspaper reports,^[3] the UK got the backing of Germany to torpedo the draft Directive in return for the UK to help sink the Takeover Directive (Germany has comprehensive agency work regulation under its Arbeitnehmerüberlassungsgesetz and its Civil Code, esp §622, and the UK has strong Takeover Regulation, especially Rule 21 of the City Code).^[4]

Notes

^ Full name: Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, 2008/104/EC
^ see, Art.3 TEU and Defrenne v. Sabena (No.2) where the European Court of Justice holds that Europe is not just an economic union, but intended also for social development.
^ see, Carl Mortished, ‘UK turns against EU merger law in deal with Germany,’ The Times, 19 May 2003. According to the report, "The Commission is hoping to have the Takeover Directive passed with Mediterranean support but Germany wants a compromise to strip the law of key articles that prevent management using takeover defences and poison pills without prior authorisation. The UK Cabinet is believed to have abandoned support for the free market principle and, instead, formed an alliance with Germany in return for its support in wrecking the Temporary Agency Workers Directive. "The Brits have sold the City down the river," a source close to the talks said. Britain has been fighting a desperate battle to prevent the introduction of rules that give temps the same employment rights as full-time workers."
^ for interesting discussion, see David Kershaw, 'The Illusion of Importance' (2007) 56 ICLQ 267

References

Articles

N Countouris, 'The Temporary Agency Work Directive: Another Broken Promise?' [2009] 38(3) ILJ 329
E McGaughey, 'Should Agency Workers be Treated Differently?' (2010) SSRN

Newspaper stories

Guardian, [1] (21.5.2008)
EU Observer, [2] (17.12.2008)

External links

Full text of the proposed Directive (COD 2002/0149) with introductory text laying out its aims.
Full .pdf text of the implemented Directive (2008/104/EC)
Agency Workers Regulations 2010, implementing the Directive in UK labour law

[1] Full name: Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, 2008/104/EC

[2] see, Art.3 TEU and Defrenne v. Sabena (No.2) where the European Court of Justice holds that Europe is not just an economic union, but intended also for social development.

[3] see, Carl Mortished, ‘UK turns against EU merger law in deal with Germany,’ The Times, 19 May 2003. According to the report, "The Commission is hoping to have the Takeover Directive passed with Mediterranean support but Germany wants a compromise to strip the law of key articles that prevent management using takeover defences and poison pills without prior authorisation. The UK Cabinet is believed to have abandoned support for the free market principle and, instead, formed an alliance with Germany in return for its support in wrecking the Temporary Agency Workers Directive. "The Brits have sold the City down the river," a source close to the talks said. Britain has been fighting a desperate battle to prevent the introduction of rules that give temps the same employment rights as full-time workers."

[4] r interesting discussion, see David Kershaw, 'The Illusion of Importance' (2007) 56 ICLQ 267

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