Proposal for a Directive of the European Parliament and the Council on working conditions for temporary workers
Date: 2002-03-20
Institutions: European Commission
Subjects: Community Charter of the Fundamental Social Rights of Workers, equal treatment, labour market, social legislation, temporary employment, working conditions

27.8.2002

EN

Official Journal of the European Communities

C 203 E/1

II

(Preparatory Acts)

COMMISSION

Proposal for a Directive of the European Parliament and the Council on working conditions for
temporary workers

(2002/C 203 E/01)

(Text with EEA relevance)

COM(2002) 149 final — 2002/0072(COD)

(Submitted by the Commission on 21 March 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community and, in particular, Article 137(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) This

respects

instrument

the fundamental

the European Union;

rights and
complies with the principles recognised by the Charter
in
of Fundamental Rights of
it is designed to ensure full compliance with
particular,
that Charter, which provides that every
Article 31 of
worker has
to working conditions which
respect his or her health, safety and dignity and to limi-
tation of maximum working hours, to daily and weekly
rest periods and to an annual period of paid leave.

the right

(2) Moreover, point 7 of

that

the completion of

the
the Community Charter of
Fundamental Social Rights of Workers provides,
inter
the internal market must
alia,
lead to an improvement
in the living and working
conditions of workers in the European Community; this
process will be achieved by harmonising progress on
these conditions, mainly by forms of work other than
permanent contracts such as fixed-term contract work,
part-time work, temporary work and seasonal work.

(4) In accordance with the European Social Agenda, which,
on the basis of the communication from the Commission,
was adopted by the European Council in Nice of 7, 8 and
9 December 2000, with the conclusions of the European
Council in Stockholm of 23 and 24 March 2000 and with
the Council Decision of 19 January 2001 on the 2001
employment guidelines, a satisfactory and flexible work
organisation system has to be put in place, with new
flexible contracts offering workers a fair degree of job
security and enhanced occupational status, which, at the
same time,
is compatible with the workers' aspirations
and undertakings' needs.

(5) The Commission consulted the social partners on the
course of action that could be adopted at Community
level with regard to flexibility of working hours and job
security of workers on 27 September 1995.

(6) After that consultation,

the Commission decided that
Community action was desirable and consulted the
social partners once again with regard to the content of
the planned proposal on 9 April 1996.

(7) In the introduction to the framework agreement on
fixed-term work concluded on 18 March 1999, the signa-
tories had indicated their intention to consider the need
for a similar agreement on temporary work.

i.e.

(8) The general cross-sector organisations,

the UNICE,
informed the Commission in their
CEEP and ETUC,
joint letter of their desire to implement the procedure
provided for by Article 138(4) of the EC Treaty;
in a
joint letter they asked the Commission for an extension
of the deadline by three months; the Commission granted
this request by extending the negotiation deadline until
15 March 2001.

(3) The conclusions of the European Council in Lisbon of 23
and 24 March 2000 set
the European Union a new
strategic target, namely to ‘become the most competitive
and most dynamic knowledge-based economy in the
world, capable of sustained economic growth with more
and better jobs and greater social cohesion’.

(9) On 21 May 2001, the social partners acknowledged that
their negotiations on temporary work had not produced
any agreement.

(10) There are considerable differences in the legal situation of

temporary workers within the Union.

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(11) Temporary work should meet undertakings' needs for
flexibility
their
working and private lives and contribute to job-creation
and participation and integration in the labour market.

and employees' needs

to reconcile

(12) The aim of

agencies

this directive is to establish a protective
framework for temporary workers which also provides
temporary
European
operating
Community with a consistent and flexible framework
which is conducive to their activities, without imposing
any administrative,
financial or legal constraints which
would impede the creation and development of small
and medium-sized undertakings.

the

in

(13) This Directive shall be implemented in compliance with
the Treaty, specifically with regard to freedom to provide
services and freedom of establishment and without
European
prejudice
Parliament and the Council of 16 December 1996 (1)
concerning the posting of workers in the framework of
the provision of services.

to Directive 96/71/EC of

the

(14) Directive 91/383/EEC of 25 June 1991 (2) supplementing
the measures to encourage improvements in the safety
and health at work of workers with a fixed-duration
employment relationship or a temporary employment
relationship establishes the safety and health provisions
applicable to temporary workers.

to basic working

employment
(15) With respect
temporary workers should not be treated
conditions,
any less favourably than a ‘comparable worker’,
i.e. a
worker in the user undertaking in an identical or similar
job, taking into account seniority, qualifications and skills.

and

(20) An improvement

in the minimum protection for
temporary workers occasioned by this Directive will
enable any restrictions or prohibitions which may have
been imposed on temporary work to be reviewed and, if
necessary, lifted if they are no longer justified on grounds
of
the
the general
protection of workers.

in particular

regarding,

interest

(21) There must be an effective means of

safeguarding

temporary workers' rights.

is

(22) In compliance with the principle of subsidiarity and the
principle of proportionality under Article 5 of the Treaty,
the aims of
the action envisaged above cannot be
achieved satisfactorily by the Member States, since the
goal
to establish a harmonised Community-level
framework of protection for temporary workers; owing
to the scale and the impact of the action planned, these
objectives can best be met at Community level by intro-
ducing minimum requirements applicable throughout the
European Community;
to
what is required for achieving these objectives,

this directive confines itself

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

(16) However, differences in treatment are acceptable if they
are objectively and reasonably justified by a legitimate aim
under national law.

1.
This directive applies to the contract of employment or
employment relationship between a temporary agency, which
is the employer, and the worker, who is posted to a user
undertaking to work under its supervision.

(17) In the case of workers who have a permanent contract
with their temporary agency, and in view of the special
protection such a contract offers, provision should be
made to permit exemptions from the rules applicable in
the user undertaking.

(18) In view of the need to maintain a certain degree of flexi-
bility in the working relationship, provision should be
made for the Member States to be able to delegate to
the social partners the task of defining basic working
and employment conditions
tailored to the specific
characteristics of certain types of employment or certain
branches of economic activity.

(19) There should be some flexibility in the application of the
principle of non-discrimination in cases of missions
effected to accomplish a job which, due to its nature or
duration, lasts less than six weeks.

This directive applies to public and private undertakings
they are

2.
engaged in economic activities whether or not
operating for gain.

3. Member States may, after consulting the social partners,
provide that
this directive does not apply to employment
contracts or relationships concluded under a specific public
or publicly supported training,
integration or vocational
retraining programme.

Article 2

Aim

The purpose of this Directive is:

(1) OJ L 18, 21.1.1997, p. 1.
(2) OJ L 206, 29.7.1991, p. 19.

1. to improve the quality of temporary work by ensuring that
the principle of non-discrimination is applied to temporary
workers;

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2. to establish a suitable framework for the use of temporary
work to contribute to the smooth functioning of the labour
and employment market.

(c) persons on a posting at a user undertaking.

Article 3

Definition

1. For the purposes of this directive:

(a)

‘worker’ means any person who, in the Member State
is protected as a worker under national
concerned,
employment law;

(b) ‘comparable worker’ means a worker in the user under-
taking occupying an identical or similar post to that
occupied by the worker posted by the temporary
agency, account being taken of seniority, qualifications
and skills;

(c)

‘posting’ means the period during which the temporary
worker is placed at the user undertaking;

(d) ‘basic working and employment conditions’: working

and employment conditions relating to:

Article 4

Review of restriction or prohibitions

legislation,

1. Member States, after consulting the social partners in
accordance with
and
national practices, shall review periodically any restrictions or
prohibitions on temporary work for certain groups of workers
or sectors of economic activity in order to verify whether the
specific conditions underlying them still obtain. If they do not,
the Member States should discontinue them.

agreements

collective

The Member States shall notify the Commission of the
2.
result of said review.
If the restrictions or prohibitions are
maintained, the Member States shall inform the Commission
why they consider that they are necessary and justified.

The restrictions or prohibitions which could be maintained
shall be justified on grounds of the general interest regarding,
in particular, the protection of workers.

(i) the duration of working time, rest periods, night

work, paid holidays and public holidays;

CHAPTER II

(ii) pay;

(iii) work done by pregnant women and nursing

mothers, children and young people;

(iv) action taken to combat discrimination on the
grounds of sex, race or ethnic origin, religion or
beliefs, disabilities, age or sexual orientation.

EMPLOYMENT AND WORKING CONDITIONS

Article 5

The principle of non-discrimination

Temporary workers during their posting, shall receive at
1.
least as favourable treatment, in terms of basic working and
employment conditions,
including seniority in the job, as a
comparable worker in the user enterprise, unless the difference
in treatment is justified by objective reasons. Where appro-
priate, the pro rata temporis principle applies.

2. This directive shall be without prejudice to national law as
regards
the definition of contract of employment or
employment relationship. However, Member States shall
not exclude from the scope of this Directive contracts of
employment or employment relationships solely because
they concern:

2. Member States may provide that an exemption be made
to the principle established in paragraph 1 when temporary
workers who have a permanent contract of employment with a
temporary agency continue to be paid in the time between
postings.

(a) part-time workers within the meaning of Council

Directive 97/81/EC of 15 December 1997;

(b) fixed-term contract workers within the meaning of

Council Directive 99/70/EC of 28 June 1999;

3. Member States may give the social partners at the appro-
priate level
the option of concluding collective agreements
which derogate from the principle established in paragraph 1
as long as an adequate level of protection is provided for
temporary workers.

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4. Without prejudice to the provisions of paragraphs 2 and
3 above, Member States may provide that paragraph 1 shall
not apply where a temporary worker works on an assignment
or series of assignments with the same user enterprise in a post
which, due to its duration or nature, can be accomplished in a
period not exceeding six weeks.

Member States shall take appropriate measures with a view to
preventing misuse in the application of this paragraph.

5. When this directive calls for a comparison to be made
with a comparable worker in the user undertaking but no such
reference shall be made to the collective
worker exists,
agreement applicable in the user undertaking;
if no such
collective agreement exists, the comparison will be made by
to the
reference
to the
is
temporary work agency;
applicable, the basic working and employment conditions of
temporary workers will be determined by national legislation
and practices.

if no collective

agreement

agreement

applicable

collective

6.
The implementing procedures for this Article shall be
defined by the Member States after consultation of the social
partners. The Member States may also entrust
the social
partners at the appropriate level with the task of defining
these procedures for this chapter by means of a negotiated
agreement.

Article 6

Access to permanent quality employment

1.
Temporary workers shall be informed of any vacant posts
in the user undertaking to give them the same opportunity as
to find permanent
other workers
employment.

in that undertaking

2. Member States shall take any action required to ensure
that any clauses banning or having the effect of preventing the
conclusion of a contract of employment or an employment
relationship between the user undertaking and the temporary
worker after his posting are null and void or may be declared
null and void.

3.
Temporary agencies shall not charge workers any fees in
exchange for arranging for them to be recruited by a user
undertaking.

Temporary workers shall be given access to the social
the user undertaking unless there are objective

4.
services of
reasons against this.

5. Member States shall
take suitable measures or shall
promote dialogue between the social partners, in accordance
with their national traditions and practices in order to:

— improve temporary workers' access to training in the
temporary agencies, even in the periods between their

postings,
and employability;

in order to enhance their career development

— improve temporary workers' access to training for user

undertakings' workers.

Article 7

Representation of temporary workers

threshold above which bodies

Temporary workers shall count for the purposes of calculating
the
representing workers
provided for under national and Community legislation
should be formed at the temporary agency.

Member States may provide that, under conditions that they
define, these workers count for the purposes of calculating the
threshold above which bodies representing workers provided
for by national and Community legislation should be formed in
the user undertaking.

Article 8

Information of workers' representatives

Without prejudice to national and Community provisions
which are more stringent and/or more specific on information
and consultation, the user undertaking must provide suitable
information on the use of temporary workers when providing
information on the employment situation in that undertaking
to bodies representing the workers set up in accordance with
national and Community legislation.

CHAPTER III

FINAL PROVISIONS

Article 9

Minimum requirements

1.
This directive does not prejudice the Member States' right
to apply or introduce legislative, regulatory or administrative
provisions which are more favourable to workers or
to
promote or permit collective agreements concluded between
the social partners which are more favourable to workers.

The implementation of

this Directive shall under no
2.
circumstances constitute sufficient grounds for justifying a
reduction in the general level of protection of workers in the
fields covered by this Directive. This shall be without prejudice
to the rights of Member States and/or management and labour
to lay down, in the light of changing circumstances, different
legislative, regulatory or contractual arrangements to those
prevailing at
this Directive,
provided always that the minimum requirements laid down
in this Directive are adhered to.

the adoption of

the time of

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Article 10

Penalties

Member States shall lay down rules on sanctions applicable in
the event of infringements of national provisions enacted under
this directive and shall take all necessary measures to ensure
that
they are applied. The penalties provided for must be
effective proportionate and disuasive. Member States shall
notify these provisions to the Commission by the date given
in Article 11 at the latest and any subsequent amendment
within good time. They shall,
in particular, ensure that
workers and/or their representatives have adequate means of
enforcing the obligations under this directive.

Article 11

Implementation

the

that

The Member States shall adopt the laws, regulations and
1.
administrative provisions necessary to comply with this
directive by [two years after adoption] at the latest, or shall
ensure
the necessary
provisions by way of an agreement, whereby the Member
States must make all the necessary arrangements to enable
them to guarantee at any time that
this
directive are being attained. They shall forthwith inform the
Commission thereof.

the objectives of

social partners

introduce

2. When Member States adopt these provisions, they shall
contain a reference to this directive or shall be accompanied by
such a reference on the occasion of their official publication.
The methods of making such reference shall be laid down by
the Member States.

Article 12

Review by the Commission

(Five years after adoption of this directive) at the latest, the
Commission shall,
in consultation with the Member States
and social partners at Community level, review application
the
thereof with a view to proposing, where appropriate,
necessary amendments to the Parliament and the Council.

Article 13

Entry into force

This directive shall enter into force on the twentieth day after
its publication in the Official Journal of the European Communities.

Article 14

This directive is addressed to the Member States.