Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and the Council on working conditions for temporary workers" (COM(2002) 149 final — 2002/0072 (COD))
Date: 2002-09-19
Institutions: European Economic and Social Committee
Subjects: Community Charter of the Fundamental Social Rights of Workers, equal treatment, labour market, social legislation, temporary employment, working conditions

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Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and the Council on working conditions for temporary workers’

(COM(2002) 149 final — 2002/0072 (COD))

(2003/C 61/21)

On 22 April 2002, the Council decided to consult the Economic and Social Committee, under Article 137
of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 4 September 2002. The rapporteur was Mrs Le
Nouail-Marlière.

At its 393rd Plenary Session (meeting of 19 September 2002) the Economic and Social Committee
adopted the following opinion by with 83 votes in favour, 75 against and 12 abstentions.

1.

Introduction

1.1.
Since the beginning of the 80s, temporary work has
become an increasingly prominent feature of the European
labour market. The Council and the Parliament responded to
this trend by adopting resolutions (1) in which they emphasised
the need for Community action to provide a framework for
temporary work and to ensure that the workers in question
were protected. In 1982, the Commission submitted a proposal
for a directive to them to meet this need, which was amended
in 1984 but never adopted.

In 1990, the Commission put forward a set of basic
1.2.
rules to ensure that there was a minimum degree of consistency
between the various types of contracts for atypical employ-
ment: part-time work, fixed-term contracts and temporary
work (2).

1.3.
This was part of the action programme associated with
the Community Charter of the Fundamental Social Rights of
Workers, which stated that these new living and working
conditions should be ‘harmonised from above’.

1.4.
The only proposal adopted, taking the form of Council
Directive 91/383/EEC of 25 June 1991, concerned temporary
workers and was designed to guarantee the same conditions
of health and safety as for workers in the user undertaking.

1.5.
Since no progress was made in the Council on
the initiatives described above, the Commission decided to
implement the procedure under Article 3 of the Agreement on
Social Policy annexed to the Protocol (No 14) on Social Policy
annexed to the Treaty establishing the European Community

( 1) OJ C 2, 4.1.1980, p. 1 and OJ C 260, 12.10.1981, p. 54.
( 2) Three proposals for Council Directives on atypical work, COM(90)

228 final of 29.6.1990, OJ C 224, 8.9.1990, p. 8.

(new Treaty Articles 137 and 138 on social dialogue). Agree-
ments on part-time work and fixed-term contracts reached by
three representative organisations, UNICE, CEEP and ETUC (3),
were
implemented by Council Directives 97/81/EC of
15 December 1997 and 1999/70/EC of 28 June 1999
respectively. The latter emphasised the principle of non-
discrimination of workers on the basis of their work contract.

1.6.
In May 2000, the social partners decided to start
negotiations on the third section of the Commission’s initiative
on atypical employment, flexible working time and worker
safety, concerning temporary work. However, on 21 May
2001 they had to acknowledge that they were not able to
reach an agreement.

1.7.
The stalemate came when attempting to lay down the
terms of comparison for the possibility of equal treatment
between a temporary worker and a permanent employee of
the user undertaking in question, including working conditions
and pay, or of equal treatment between salaried temporary
workers even within a temporary agency.

1.8.
After ten months, the Commission has taken up its
right of initiative once again by submitting the present draft
directive (4). The Committee would point out that two reports
may be consulted to ascertain the specific aspects of working
and employment conditions and health and safety at work (5)
as regards temporary workers.

(3) Union of Industrial and Employers’ Confederations in Europe
(UNICE). European Centre for Public Enterprises (CEEP). European
Trade Union Confederation (ETUC).
(4) Explanatory Memorandum, section 3.1.B.
(5) Temporary agency work in the European Union, Donald Storrie,
the European Foundation for the Improvement of Living and
Working Conditions (2002) and New forms of contractual
relationships and the implications for occupational safety and
health, European Agency for Safety and Health at Work.

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1.9.
In addition to the differing legal situations in the
Member States, which the social partners and the Commission
are aware of, temporary work also differs widely in structural
and social terms. In countries whose national economies are
predominantly service-based, temporary workers are primarily
employed in the service sector, at managerial level and below,
in some cases accounting for the majority of temporary staff.
In other countries, however, where industrial or agricultural
development is still mainly dependent on sectors using ‘casual’
labour, the use of temporary work and the conditions under
which it is resorted to are structured differently. Of course, in
all cases, temporary labour is used to replace absent workers
(sickness, maternity, leave), but that is no longer the most
common instance in which it is used. Since the late 1980s, the
reasons for employing temporary workers have ranged from
dealing with seasonality in some farming, agrifood or large-
scale distribution sectors to making working conditions more
flexible in various industries and the widespread introduction
of ‘just in time production’. The Committee’s recommendations
quite specifically take account of these varying conditions,
without losing sight of the objectives of ‘full employment’ set
by the Lisbon Council.

1.10.
The Committee would add that the biggest temporary
agencies in the European marketplace are Swiss or American
holding companies, followed by Dutch, British, Belgian or
French groups (1).

1.11.
Depending on the country and the source, temporary
work accounts for between 2 and 10 % of the wage-earning
population and between 30 and 50 % of labour market
entrants (under 25s).

2. Content of

the draft directive — Preamble and
Chapters on general provisions, employment and
working conditions and final provisions

2.1.
The scope of the draft directive covers ‘a contract of
employment or employment relationship between a temporary
agency’, deemed the employer, and ‘a worker posted to a user
undertaking to work under its supervision’; it applies to ‘public
and private undertakings engaged in economic activities’.
‘Employment contracts concluded under a specific public or
publicly supported training, integration or vocational retrain-
ing programme’ may be exempted.

2.2.
Chapter I Article 2 sets out the aim of the directive: to
improve the quality of temporary work by ensuring that
the principle of non-discrimination is applied to temporary
workers, and to establish a framework for the use of temporary
work to contribute to the smooth functioning of the labour

( 1) Travail temporaire, diagnostic et prévisions 2002, Institut Xerfi

(France).

market. Article 3 defines the terms used, while Article 4
introduces provisions on the review of restrictions or prohib-
itions in operation in the Member States.

In Chapter II, Article 5 sets out a principle of non-
four derogations and

2.3.
discrimination and equal treatment,
implementing procedures.

2.4.
Article 6 contains provisions on access for temporary
workers to vacancies for permanent posts in the user undertak-
ing and prohibits temporary agencies from charging workers
any fees. It also states that temporary workers shall also be
given access to the social services of the user undertaking and
that temporary workers’ access to training should be clearly
defined by the Member States or the social partners.

2.5.
Article 7 provides for the representation of temporary
workers at the temporary agency and for temporary workers
to be taken into account for the purposes of calculating
thresholds at the user undertaking. Article 8 provides for
the information of workers’ representatives on the bodies
representing workers in the user undertaking regarding the use
of temporary workers within their company.

2.6.
Chapter III contains the final provisions, including the
minimum requirements (Article 9), which deal with the non-
reversal of more favourable provisions in the Member States,
improvements and amendments permitted through collective
agreements and respecting the general level of protection of
workers in the fields covered by the draft.

Lastly, Articles 10, 11, 12 and 13 are standard

2.7.
provisions.

3. General comments

At the international level, ILO Convention C 181 1997
3.1.
concerning private employment agencies was adopted on
19 June 1997 and ratified by Spain, Finland,
Italy, the
Netherlands and, since 23 March 2002, Portugal. Of the
candidate countries, the Czech Republic has also ratified this
Convention. While lifting the ban on private employment
agencies, the Convention aims to protect workers using the
services of private employment agencies and specifies the type
of measures which States must take in order to guarantee
adequate protection of temporary workers. The Committee
encourages Member States who have not yet done so to ratify
this Convention.

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3.2.
At the European level, it is worth bearing in mind the
principle of equal treatment among workers, specifically the
various directives and decisions on non-discrimination on the
grounds of gender, nationality, ethnic origin, group affiliation,
political or religious convictions, disability, age or sexual
orientation (1), which testify to the high degree of harmonis-
ation achieved by the EU in this field.

4.2.2. A r t i c l e 1 . 2

The Committee would point out that, under national law,
some public administrations are not allowed to recruit staff on
temporary contracts. It therefore proposes that there should
be a distinction between public ‘enterprises’ and public ‘admin-
istrations’, depending on the situation in each country.

3.3.
It is also worth pointing out that the (revised) Council
of Europe Social Charter, the Charter of Fundamental Rights
and the European Convention for the Protection of Human
Rights, as well as the fundamental ILO Conventions ratified by
all Member States (2) guarantee trade-union freedom and
equality in work and employment for all workers.

4.2.3. A r t i c l e 1 . 3

4. General provisions

4.1.

Title of the directive

In the interests of consistency throughout
the text, the
Committee suggests that the title should read ‘... on working
and employment conditions for temporary workers’.

4.2.

Scope

4.2.1. A r t i c l e 1 . 1

The Committee points out that only the contract of employ-
ment falls within the scope of the draft, and not the commercial
contract between temporary agencies and user undertakings.
Nevertheless, the Committee feels that the provisions of these
contracts on the terms of posting temporary workers must not
conflict with the provisions of the present directive. This must
be explicitly stated, either as an exemption to the scope or in
the final provisions so that there are no juridical inconsistencies
in the internal law of the Member States when this legislation
is transposed.

pp.

16-22. Council Directive

( 1) Council Directive 2000/78/EC establishing a general framework
for equal treatment in employment and occupation, OJ L 303,
2.12.2000,
2000/43/EC
implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, OJ L 180, 19.7.2000,
pp. 22-26. Council Decision establishing a Community action
programme to combat discrimination (2001 to 2006), OJ L 303,
2.12.2000, pp. 23-28.

( 2) Especially Conventions C 87, C 98, C 111 and C 135.

The Committee proposes amending the wording of this point,
replacing ‘after consulting the social partners’ with ‘when there
are agreements with the social partners’.

4.3. Aim (Article 2)

Given that Article 2(a) entails human consequences while 2(b)
deals with the economic aspect of the labour market, the
Committee endorses the principles of equal treatment, i.e. non-
discrimination with respect to other workers, as mentioned in
the preamble and set out in Article 5 of the draft directive. But
it would add as a further objective the raising of social
standards and protections to reinforce social and economic
cohesion.

4.4. Definitions (Article 3)

4.4.1.

‘ c o m p a r a b l e w o r k e r ’

The seniority referred to here is taken to mean seniority within
the user undertaking.
to be discriminatory,
In order not
account should also be taken of the seniority of the temporary
worker in his occupation, in addition to his qualifications and
skills, because when taking people on as temporary workers,
the agency also makes its recruitment choice based on
the work certificates submitted. The national legislation or
conventions of certain Member States contain provisions
referring to ‘an equivalent level of qualification, after a trial
period, to a full-time employee in the same post’. However,
these provisions do not take account of the seniority of
temporary workers in their occupation or area of activity. This
constitutes a basic inequality of treatment deriving from the
status of temporary workers which could be rectified by the
social partners and at Member State level if the draft directive
were to prompt them to do so.

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4.4.2.

‘ b a s i c w o r k i n g a n d e m p l o y m e n t c o n -
d i t i o n s ’

with Council Directive 91/383/EEC (4), especially as regards
radiation.

The Committee notes that basic working and employment
conditions
include pay (cf. Article 3(d)(ii)). Although
Article 137 of the EC Treaty allows the Member States to
retain the prerogative on basic social protection and pension
rights, the Committee would point out that, for temporary
workers, these rights prove to be basic working and employ-
ment conditions, both in terms of qualifying for these rights
and the length of time that has to be worked to qualify for
them and in terms of piecing together job histories to gain
access to these rights (1). As was the case with the directive on
fixed term contracts, the Member States should be urged to
take supplementary measures to adapt their social security
systems to this form of working so as to ensure equal
treatment, since the discrimination which exists hinges largely
on these factors (thresholds and conditions for entitlement to
unemployment benefit, payment of social security contri-
butions).

4.5. Review of restrictions or prohibitions (Article 4)

The provisions of the EC Treaty (Article 137.6) do
4.5.1.
not allow the directive to place a formal ban on using
temporary workers to replace workers involved in a collective
dispute (strikes in particular). However, the Committee would
point out that there is a voluntary commitment on the part of
agencies not to post temporary workers to replace workers
involved in collective action (2) and that some Member States
have introduced such a ban in their national
legislation. A
commitment of this kind should become the norm both for
temporary agencies and for user undertakings.

The directive should at least contain a provision ensuring that
the national right to strike is not undermined. One proposal
would be to provide for Member States themselves and/or the
social partners to introduce regulations ruling out the use of
temporary workers in undertakings where workers are on
strike.

The Committee notes that the draft directive is rather
4.5.2.
vague about the existing restrictions which Article 4 proposes
to review. It should be possible not only to lift such restrictions,
but also to impose new ones if the particular conditions
require it in certain areas of economic activity. The evolution
of new technologies, health and public safety (3), and the
current degree of knowledge in the field of biotechnologies
make it impossible to rule out the possibility of having to
introduce new ones where they have become essential between
reviews. The Committee is thinking, for example, of the
treatment of hospital waste and the threats of bacteriological
pollution. The Committee would point out that provisions
which either impose or lift restrictions must also comply

5. Working and employment conditions

5.1. The principle of non-discrimination (Article 5)

5.1.1.
The Committee endorses the principle of non-dis-
crimination which conforms to the norms of fundamental
human rights.

The Committee recognizes that,
in order to achieve the
objective of improving the protection of temporary workers,
it is important to lay down a general principle. However, the
Committee regrets that
the derogations provided for in
Article 5 itself effectively cancel out this principle of non-
discrimination.

5.1.2.
As regards the problem of cross-border workers
posted by temporary agencies in a Member State other than
that whose law governs the contract, the law on working and
employment conditions to be applied should be that of the
Member State where the posting is located, unless that is less
favourable that the contract law of the country of origin.

5.1.3.
As regards permanent employees originating from a
third state seconded to provide cross-border services and sent
to work at a location in a Member State by an undertaking
with its head office in another Member State, the directive on
the posting of workers is the one to be applied (5).

that

The Committee regrets

study
5.1.4.
appended to the draft directive does not make a detailed study
of the effects of cross-border temporary work on national
employment markets (locations in St-Nazaire in France, Berlin
in Germany and Trieste in Italy, for example) or regional ones
(border regions).

the impact

5.1.5.
It is important to stress that the wide distribution of
temporary workers must not lead to a situation where their
representation within the social dialogue is seen as completely
separate from that of other workers.

( 1) CES 686/2002 of 29 May 2002 on Options for the reform of

pension schemes.

(4) Council Directive 91/383/EEC, OJ L 206 E, 29.7.1991,

( 2) CIETT, International Confederation of Temporary Work Busi-

pp. 19-21.

nesses.

( 3) CES 843/2002 of 17 July 2002, on the control of high activity
sealed radioactive sources. CES 1495/2001 of 29 November
2001, on market access to port services, (OJ C 48, 21.2.2002).

(5) Directive 96/71/EC of the European Parliament and of the Council
of 16 December 1996 concerning the posting of workers in the
framework of the provision of services, OJ L 18, 21.1.1997,
pp. 1-6.

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5.1.5.1.
The Committee suggests that it should be specified
that the derogation (Article 5(2)) regarding temporary workers
who have a permanent contract of employment with a
temporary agency applies only to pay and on condition that
the workers concerned receive a level of payment between
postings in line with that laid down by collective agreement
and/or legislation.

5.1.5.2.
The Committee would like to see the most favour-
able national practices which are enshrined in legislation or
collective agreements continuing to be applied in a more
clearly defined way than that suggested by Article 5(3). ‘An
adequate level of protection’ is not sufficiently well defined,
and the Committee would suggest that it could only be defined
in the final analysis by the Court of Justice or the European
Court of Human Rights, which would involve temporary
workers and employers in the vagaries of procedures which
could take many years. The Committee calls on the Com-
mission to specify how this paragraph is to be interpreted in
the light of Article 9 of this draft. For example, if ‘an adequate
level of protection’ is accepted as such by minority unions,
would this be considered ‘sufficient grounds for justifying a
reduction in the general level of protection of workers in the
fields covered by this Directive’?

The Committee is not in favour of the derogation
5.1.5.3.
defined in Article 5(4) of the draft directive, which in fact
excludes the majority of temporary workers from the purview
of
the principle of non-discrimination and introduces a
criterion of duration which is in itself discriminatory and in
contradiction with the principle of non-discrimination.

The derogation defined in Article 5(2): ‘temporary
5.1.6.
workers who have a permanent contract of employment with
a temporary agency [and] continue to be paid in the time
between postings’ and that defined in Article 5(4):
‘assign-
ments... not exceeding six weeks’, once part of Community
law, might be introduced in the Member States through a
review of the legislation or collective agreements negotiated
by the social partners,
if these less favourable Community
provisions were considered to constitute an ‘adequate level of
protection’ (Article 5 (3)).

5.1.7.
The existence of a specific statute or agreement
concerning temporary employees who have a permanent
contract of employment with a temporary agency must not
prevent such workers from benefiting from more favourable
provisions which may be in force within user undertakings.

5.2. Access to permanent quality employment (Article 6)

5.2.1.
The Committee emphasises the importance which
must be given to incorporating temporary workers in associat-
ive groupings within the enterprise and endorses Article 6(1)
as a means of promoting equal opportunities and equal
treatment among workers.

5.2.2.
The Committee also approves the provisions of
Article 6(2) which serve to render null and void any obstacles
preventing temporary workers being taken on by the user
undertaking at the end of their posting, thereby ensuring that
workers are not forced to remain in insecure employment (1).

The Committee recognises that the continuing train-
5.2.3.
ing of temporary workers should be a responsibility shared
between the user undertaking and the temporary agency, in
line with national practice, and that such practices may be
improved by the Member States (public responsibility) and by
the social partners (shared responsibility) (2).

5.3. Representation of temporary workers (Article 7)

The Committee would stress that the representation of tempor-
ary workers must be guaranteed and reinforced in compliance
with the universal principle of respecting trade-union freedom.
It therefore approves Article 7.

6.

Final provisions

6.1. Minimum requirements (Article 9)

6.1.1.
It is important not to undermine provisions protect-
ing temporary workers in countries where they are protected
in a way suited to the social norms prevailing in the
Member States, and where collectively agreed and balanced
arrangements are already in place at the time of transposition.

6.2.

Implementation (Article 11)

The Committee proposes a new paragraph 2 in Article 11, to
read as follows: ‘The Member States shall consult the social
partners prior to any legislative, regulatory or administrative
initiative taken by a Member State to comply with the present
Directive.’

5.1.8.
The freedom to choose the means of achieving the
objectives of the directive means that it is left entirely up to
the Member States to decide how exactly to implement the
principle of non-discrimination, as provided for in Article 5(6).
The Committee endorses these provisions.

(1) Commission Communication on combating exclusion and pov-

erty, (COM(2000) 368 final — 2000/0157 (COD)).

(2) EESC Opinion on the Memorandum on Lifelong Learning, OJ

C 311 of 7.11.2001.

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7. Concluding comments

On the one hand, the Committee feels that the principle
7.1.
of non-discrimination in relation to a comparable worker in
the user undertaking, which is fundamental, is in danger of
being eroded by the derogations the draft allows, specifically
in Article 5(4), concerning temporary workers who complete
assignments with a user undertaking over a period not
exceeding six weeks. The Committee fears that,
in some
countries, this derogation will have the effect of depriving
temporary workers of the protection afforded by the principle
of non-discrimination in relation to comparable workers in
the user undertaking. It considers this protection essential to
ensure the legal safety of the temporary worker and so as not
to undermine the conventional arrangements for setting
working conditions and pay within the user undertaking.

7.2.
On the other hand, the Committee realises that the
principle of non-discrimination, a fundamental principle of
the European treaties, must not be put at risk. This is to be
guaranteed using the point of reference chosen in the directive,
i.e. in terms of basic working and employment conditions, a

Brussels, 19 September 2002.

comparable worker in the user undertaking. But it would
suggest that, to ensure that this principle is implemented
effectively by the Member States, bearing in mind the differing
legal and social circumstances which apply and the triangular
nature of temporary work, which is one of its specific features,
the Member States should be allowed the option of how to
achieve it while avoiding a reference system involving restric-
tive interpretations or derogations and complying with
national legislation, conventions and practices.

7.3.
These two recommendations take into account the aim
of simplifying Community legislation which the European
institutions have expressed (1), and which the Committee has
already addressed in three opinions (2).

(1) Communication from the Commission on the Action plan
environment’,

and improving

regulatory

the

‘Simplifying
COM(2002) 278 final.

(2) EESC Opinion on Simplifying rules in the single market (SMO),
OJ C 14, 16.1.2001. EESC Opinion on Simplification, OJ C 48,
21.2.2002. EESC Opinion on the Communication from the
Commission ‘Simplifying and improving the regulatory environ-
ment’, OJ C 125, 27.5.2002.

The President

of the Economic and Social Committee

Göke FRERICHS

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APPENDIX

to the Opinion of the Economic and Social Committee

The following amendment, which obtained at least one quarter of the votes cast, was rejected during the discussion:

(COUNTER-OPINION)

Replace the whole of the section opinion with the following:

‘The Committee endorses the principle of a directive on temporary working with the twofold objective of ensuring
the legal safety of temporary workers and boosting the employment potential of this sector. However, it feels that
the Commission proposal constitutes a poor compromise.

The Committee wishes to point out that the key principle of non-discrimination towards temporary workers is not
in question. However, it feels that this principle can only be effectively applied by placing responsibility with the
Member States, allowing them the option to implement it either in relation to a comparable worker in the user
undertaking, or in relation to a comparable worker in the temporary agency. The arrangement advocated in the
Commission proposal amounts to regarding comparison with a comparable worker in the user undertaking as the
only form of reference, any other constituting a derogation and therefore subject to restrictive interpretation.

The solution advocated by the Committee is dictated by the diversity of legal situations in the Member States. The
specific nature of temporary working stems from the triangular relationship it involves. In contrast to the fixed-term
contracts cited as a reference, which are two-way relationships, temporary working involves three partners: the
temporary worker, the temporary agency and the user undertaking. The Member States have addressed this specific
aspect using a variety of legal options. In the Committee’s view, it follows that the Member States should be allowed
a degree of autonomy in implementing the principle of non-discrimination, which is in no way contested.

The Committee fears that solutions imposed from above may prove counterproductive as regards promoting
employment, which the Commission presents as an argument in favour of its proposal. It also points out that the
over-exacting nature of the proposal will give rise to new administrative burdens affecting SMEs first and foremost.’

Result of the vote

For: 82, against: 90, abstentions: 6.