Flash reports on labour law December 2022 : summary and country reports.
Date: 2022-11-30
Institutions: Directorate-General for Employment, Social Affairs and Inclusion
Subjects: EU Member State, EU law, European Economic Area, coronavirus disease, health risk, labour law, labour market, labour relations, national law, paid leave, report, serial publication, social policy, teleworking, working conditions, working time

Flash Reports on Labour Law 
December 2022 
Summary and country reports 

Written by The European Centre of 
Expertise (ECE), based on reports 
submitted by the Network of Labour 
Law Experts 

December 2022 

 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate DG Employment, Social Affairs and Inclusion 

Unit C.1 – Labour Law 

Contact: Marie LAGARRIGUE 

E-mail:  Marie.LAGARRIGUE@ec.europa.eu 

European Commission 

B-1049 Brussels 

 
 
 
Flash Report 12/2022 on Labour Law 

Manuscript completed in December 2022 

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publication. More information on the European Union is available on the Internet (http://www.europa.eu). 

Luxembourg: Publications Office of the European Union, 2022 

© European Union, 2022 

The  reuse  policy  of  European  Commission  documents  is  implemented  based  on  Commission  Decision 
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KE-CC-22-012-EN-N

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Country  
Austria 

Belgium 

Bulgaria 

Croatia 

Cyprus 

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Iceland 

Ireland 

Italy 

Latvia 

Liechtenstein 

Lithuania 

Luxemburg 

Malta 

Netherlands 

Norway 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

United Kingdom 

Labour Law Experts  
Martin Gruber-Risak 

Daniela Kroemer 

Wilfried Rauws 

Krassimira Sredkova 

Albena Velikova 

Ivana Grgurev 

Nicos Trimikliniotis 

Nataša Randlová 

Natalie Videbaek Munkholm 

Mette Soested 

Gaabriel Tavits 

Elina Soomets 

Ulla Liukkunen 

Francis Kessler 

Bernd Waas 

Costas Papadimitriou 

Tamás Gyulavári 

Leifur Gunnarsson 

Anthony Kerr 

Edoardo Ales 

Kristīne Dupate 

Wolfgang Portmann 

Tomas Davulis 

Jean-Luc Putz 

Lorna Mifsud Cachia 

Miriam Kullmann 

Suzanne Kali 

Marianne Jenum Hotvedt 

Alexander Næss Skjønberg 

Leszek Mitrus 

José João Abrantes 

Isabel Valente Dias 

Raluca Dimitriu 

Robert Schronk 

Barbara Kresal 

Joaquín García Murcia 

Iván Antonio Rodríguez Cardo 

Andreas Inghammar 

Erik Sinander 

Catherine Barnard 

 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Table of Contents 

Executive Summary ........................................................................................ 1 

Austria ............................................................................................................ 5 
National Legislation .................................................................................... 5 
1 
Court Rulings ............................................................................................. 5 
2 
Implications of CJEU Rulings ........................................................................ 7 
3 
4 
Other Relevant Information ......................................................................... 8 

Belgium .......................................................................................................... 9 
National Legislation .................................................................................... 9 
1 
Court Rulings ............................................................................................10 
2 
Implications of CJEU Rulings .......................................................................10 
3 
4 
Other Relevant Information ........................................................................11 

Bulgaria .........................................................................................................12 
National Legislation ...................................................................................12 
1 
Court Rulings ............................................................................................12 
2 
Implications of CJEU Rulings .......................................................................12 
3 
4 
Other Relevant Information ........................................................................13 

Croatia ...........................................................................................................14 
National Legislation ...................................................................................14 
1 
Court Rulings ............................................................................................17 
2 
Implications of CJEU Rulings .......................................................................17 
3 
4 
Other Relevant Information ........................................................................17 

Cyprus ...........................................................................................................18 
National Legislation ...................................................................................18 
1 
Court Rulings ............................................................................................18 
2 
Implications of CJEU Rulings .......................................................................18 
3 
4 
Other Relevant Information ........................................................................19 

Czech Republic ..............................................................................................21 
National Legislation ...................................................................................21 
1 
Court Rulings ............................................................................................25 
2 
Implications of CJEU Rulings .......................................................................25 
3 
4 
Other Relevant Information ........................................................................26 

Denmark ........................................................................................................27 
National Legislation ...................................................................................27 
1 
Court Rulings ............................................................................................27 
2 
Implications of CJEU Rulings .......................................................................28 
3 
4 
Other Relevant Information ........................................................................31 

Estonia ..........................................................................................................32 
National Legislation ...................................................................................32 
1 
Court Rulings ............................................................................................33 
2 
Implications of CJEU Rulings .......................................................................33 
3 
4 
Other Relevant Information ........................................................................34 

Finland ..........................................................................................................35 
National Legislation ...................................................................................35 
1 
Court Rulings ............................................................................................35 
2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

3 
4 

Implications of CJEU Rulings .......................................................................35 
Other Relevant Information ........................................................................36 

France ...........................................................................................................37 
National Legislation ...................................................................................37 
1 
Court Rulings ............................................................................................38 
2 
Implications of CJEU Rulings .......................................................................40 
3 
4 
Other Relevant Information ........................................................................44 

Germany ........................................................................................................45 
National Legislation ...................................................................................45 
1 
Court Rulings ............................................................................................45 
2 
Implications of CJEU Rulings .......................................................................46 
3 
4 
Other Relevant Information ........................................................................46 

Greece ...........................................................................................................47 
National Legislation ...................................................................................47 
1 
Court Rulings ............................................................................................47 
2 
Implications of CJEU Rulings .......................................................................47 
3 
4 
Other Relevant Information ........................................................................47 

Hungary .........................................................................................................48 
National Legislation ...................................................................................48 
1 
Court Rulings ............................................................................................48 
2 
Implications of CJEU Rulings .......................................................................48 
3 
4 
Other Relevant Information ........................................................................49 

Iceland ..........................................................................................................50 
National Legislation ...................................................................................50 
1 
Court Rulings ............................................................................................50 
2 
Implications of CJEU Rulings .......................................................................50 
3 
4 
Other Relevant Information ........................................................................50 

Ireland ..........................................................................................................51 
National Legislation ...................................................................................51 
1 
Court Rulings ............................................................................................52 
2 
Implications of CJEU Rulings .......................................................................53 
3 
4 
Other Relevant Information ........................................................................53 

Italy ..............................................................................................................54 
National Legislation ...................................................................................54 
1 
Court Rulings ............................................................................................54 
2 
Implications of CJEU Rulings .......................................................................54 
3 
4 
Other Relevant Information ........................................................................55 

Latvia ............................................................................................................56 
National Legislation ...................................................................................56 
1 
Court Rulings ............................................................................................56 
2 
Implications of CJEU Rulings .......................................................................56 
3 
4 
Other Relevant Information ........................................................................56 

Liechtenstein .................................................................................................57 
National Legislation ...................................................................................57 
1 
Court Rulings ............................................................................................57 
2 
Implications of CJEU Rulings .......................................................................57 
3 
4 
Other Relevant Information ........................................................................58 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Lithuania .......................................................................................................59 
National Legislation ...................................................................................59 
1 
Court Rulings ............................................................................................59 
2 
Implications of CJEU Rulings .......................................................................59 
3 
4 
Other Relevant Information ........................................................................59 

Luxembourg ..................................................................................................60 
National Legislation ...................................................................................60 
1 
Court Rulings ............................................................................................62 
2 
Implications of CJEU Rulings .......................................................................62 
3 
4 
Other Relevant Information ........................................................................62 

Malta .............................................................................................................63 
National Legislation ...................................................................................63 
1 
Court Rulings ............................................................................................63 
2 
Implications of CJEU Rulings .......................................................................63 
3 
4 
Other Relevant Information ........................................................................64 

Netherlands ...................................................................................................65 
National Legislation ...................................................................................65 
1 
Court Rulings ............................................................................................67 
2 
Implications of CJEU Rulings .......................................................................68 
3 
4 
Other Relevant Information ........................................................................71 

Norway ..........................................................................................................72 
National Legislation ...................................................................................72 
1 
Court Rulings ............................................................................................73 
2 
Implications of CJEU Rulings .......................................................................73 
3 
4 
Other Relevant Information ........................................................................74 

Poland ...........................................................................................................75 
National Legislation ...................................................................................75 
1 
Court Rulings ............................................................................................75 
2 
Implications of CJEU Rulings .......................................................................75 
3 
4 
Other Relevant Information ........................................................................76 

Portugal .........................................................................................................77 
National Legislation ...................................................................................77 
1 
Court Rulings ............................................................................................78 
2 
Implications of CJEU Rulings .......................................................................78 
3 
4 
Other Relevant Information ........................................................................79 

Romania ........................................................................................................80 
National Legislation ...................................................................................80 
1 
Court Rulings ............................................................................................81 
2 
Implications of CJEU Rulings .......................................................................81 
3 
4 
Other Relevant Information ........................................................................82 

Slovakia .........................................................................................................83 
National Legislation ...................................................................................83 
1 
Court Rulings ............................................................................................85 
2 
Implications of CJEU Rulings .......................................................................85 
3 
4 
Other Relevant Information ........................................................................86 

Slovenia .........................................................................................................87 
National Legislation ...................................................................................87 
1 
Court Rulings ............................................................................................90 
2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

3 
4 

Implications of CJEU Rulings .......................................................................91 
Other Relevant Information ........................................................................91 

Spain .............................................................................................................93 
National Legislation ...................................................................................93 
1 
Court Rulings ............................................................................................94 
2 
Implications of CJEU Rulings .......................................................................95 
3 
4 
Other Relevant Information ........................................................................95 

Sweden ..........................................................................................................96 
National Legislation ...................................................................................96 
1 
Court Rulings ............................................................................................96 
2 
Implications of CJEU Rulings .......................................................................97 
3 
4 
Other Relevant Information ........................................................................97 

United Kingdom .............................................................................................98 
National Legislation ...................................................................................98 
1 
Court Rulings ............................................................................................98 
2 
Implications of CJEU Rulings .......................................................................98 
3 
Other Relevant Information ........................................................................99 
4 

 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Executive Summary 

National 
developments 

level 

Latvia, 

In December 2022, 26 countries (all but 
Bulgaria, 
Liechtenstein, 
Lithuania  and  Malta)  reported  some 
labour law developments. The following 
were  of  particular  significance  from  an 
EU law perspective: 

Developments 
COVID-19 crisis 

related 

to 

the 

This month, the extraordinary measures 
to  mitigate  the  COVID-19  crisis  played 
only a minor role in the development of 
labour law in many Member States and 
European 
(EEA) 
countries.  

Economic 

Area 

In Austria, the COVID-19 Special Care 
Leave 
employees  has  been 
extended.  

for 

Similarly, in Luxembourg, the measure 
on additional income for people in early 
retirement  who  decided  to  return  to 
work in the health care sector has been 
extended. 

Working time 

constraints 

In Ireland, the Labour Court ruled that 
on-call/standby time is not working time 
if  the  attendance  requirements  do  not 
the 
for 
imply  major 
employee.  Similarly, 
in  Spain,  the 
Supreme  Court  reiterated  that  the 
stand-by  time  of  health  staff  is  to  be 
considered working time when they are 
required  to  remain  at  the  employer’s 
premises 
be 
permanently available.  

and/or 

need 

to 

In  France,  the  Court  of  Cassation 
overturned its previous case law on the 
qualification  of  commuting  time,  and 
clarified its previous case law related to 
day package agreements. 

In the Netherlands, a court ruled that 
the  remuneration  paid  to  two  crane 
the 
operators 
surcharges they received for night shifts 
should be included in the calculation of 
holiday pay. 

for  overtime  and 

In  Estonia,  new  amendments  to  the 
Employment Contracts Act provide more 
flexibility in working time. 

In  Portugal,  a  pilot  programme  for 
evaluating the effects of the reduction of 
the  work  week  to  four  days  was 
approved. 

Work life balance 

In  Germany,  the  Act  on  the  Further 
Implementation  of  the  Directive  (EU) 
2019/1158 on work-life balance passed 
through  the  Bundesrat.  Similarly,  parts 
of the  Work-life Balance  Directive  were 
transposed into Slovenian law.  

In  Luxembourg,  the  rules  on  parental 
leave were adapted to comply with CJEU 
case law. 

In  Italy,  the  newly  approved  State 
budget also contains provisions relating 
to  parental  leave,  while  a  new  Family 
Benefits  Act  has  been  adopted 
in 
Croatia. 

Annual leave 

In Germany, the Federal Labour Court 
important  rulings  on 
delivered  two 
limitation  and 
forfeiture  of  holiday 
entitlements. 

In  Slovenia,  the  Constitutional  Court 
decided that the upper limit to the right 
to  paid  annual 
for  public 
employees was unconstitutional. 

leave 

Transfer of undertakings 

In  the  Netherlands,  a  court  ruled  on 
the  role  of  a  dynamic  incorporation 
clause in a transfer of undertakings. 

In  Portugal,  a  ruling  of  the  Appeal 
Court of Lisbon dealt with the transfer of 
an economic unit. 

Whistleblowing 

the 
In  Belgium  and  Romania, 
Whistleblowing  Directive  2019/1937 
was transposed into law.  

September 2022 

1 

 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

an  Act 

the 
In  Germany, 
implementation  of  this  Directive  was 
passed  by  the  Bundestag,  while  in  the 
Czech Republic, a new Bill to transpose 
it into law. 

on 

Posting of workers 

In Croatia and Luxembourg, Directive 
(EU)  2020/1057  on  the  posting  of 
drivers in the road transport sector has 
been implemented into legislation.  

In  Slovenia,  the  Act  Regulating  the 
Working  Time  and  Compulsory  Rest 
Periods  of  Mobile  Workers  and  on 
Recording Equipment in Road Transport 
has been amended. 

Teleworking 

In  Italy,  the  newly  approved  State 
budget  contains  provisions  relating  to 
teleworking.  

In  Spain,  a  new  law  introduced  new 
rules  to  facilitate  the  residence  of 
international teleworkers in Spain. 

In Poland, an amendment to the Labour 
Code on teleworking has been enacted.  

Temporay agency work 

In 
the  Netherlands,  a  bill  on 
mandatory certification for employment 
agencies,  aimed  at  fighting  fraudulent 
agencies,  was 
temporary  work 
approved.  Furthermore,  a  court  held 
that  assigning  a  temporary  agency 
worker for 13 years is not an abuse. 

to  hiring 
In  Norway, 
workers from temporary work agencies 
have been introduced. 

restrictions 

In Belgium, a new collective agreement 
contains  an  updated  list  of  information 
that the user undertaking of temporary 

agency  workers  must  provide  to  its 
works council. 

Other forms of atypical work 

In Austria, two decisions of the Austrian 
Supreme  Court  dealt  with  consecutive 
fixed-term employment contracts. 

In  Croatia,  an  amendment  to  the 
Labour  Act 
adopted, 
introducing  a  presumption  of  an 
employment 
for  digital 
relationship 
platform workers.  

been 

has 

In  Finland,  a  draft  amendment  to  the 
Seasonal  Work  Decree  to  clarify  and 
improve  berry  pickers’  status  has  been 
proposed. 

Other developments 

health 

occupational 

In  the  Czech  Republic,  a  new  Decree 
introduced  several  changes  in  the  area 
of 
services. 
Furthermore,  a  new  act  introduced 
modifications 
regulation  of 
working  time  of  employees  in  inland 
navigation,  as  well  as 
their 
assessment  of  health  capacity  and 
training. 

the 

in 

in 

In  Germany,  the  Bundestag  approved 
the  Federal  Government’s  draft  law 
implementing  the  provisions  of  EU 
Directive  2019/2121  on  employee 
participation 
cross-border 
in 
transformations, mergers and divisions. 

In Ireland, Directive 2019/1152/EU on 
transparent  and  predictable  working 
conditions  has  been  implemented  into 
national legislation. 

September 2022 

2 

 
 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Table 1: Major labour law developments 

Topic 

Working time 

Countries 

EE ES FR HR IE NL PT SI 

Work-life balance 

DE HR SI LU IT 

Collective bargaining and collective action 

AT BE CY RO HU 

Whistleblowing 

BE CZ DE RO  

Temporary agency work 

Telework 

Minimum wage 

Posting of workers 

COVID-19 

Fixed-term work 

Annual leave 

Transfer of undertakings 

Employee status  

Seafarers’ work  

Platform work 

Transparent 
conditions 

and 

predictable  working 

Occupational safety and health 

Seasonal work  

Cross-border mergers 

BE NL NO 

IT ES PL 

CZ SK LU 

HR SI LU 

AT LU 

AT HR 

DE SI 

NL PT 

DK ES 

CZ UK 

HR CY 

IE RO 

CZ 

FI 

DE 

September 2022 

3 

 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Implications 
Rulings 

of  CJEU 

have any implications for these national 
legal systems.  

Temporary agency work 

Flash  Report 

This 
implications  of  a  CJEU 
temporary agency work.  

analyses 

the 
ruling  on 

CJEU  case  C-311/21,  15  December 
2022, 
TimePartner 
Personalmanagement  

case, 

clarifying 

temporary 

the  present 

the  CJEU 
In 
‘overall 
interpreted  the  concept  of 
agency 
protection 
of 
workers’, 
under  which 
conditions  a  collective  agreement  can 
derogate  in  peius  from  the  principle  of 
equal  treatment  of  temporary  agency 
workers  established  by  Article  5(1)  of 
Directive  2008/104/EC:  in  this  regard, 
the  Court  held  that  workers  must  be 
granted  advantages  in  terms  of  basic 
working  and  employment  conditions 
which  compensate  for  the  difference  in 
treatment  experienced.  Furthermore, 
while Member States are not required to 
specify which conditions and criteria are 
to be respected in such derogations, the 
collective 
that 
Court  held 
agreements  must  be  amenable 
to 
effective  judicial  review  to  determine 
whether 
the  social  partners  have 
respected  the  overall  protection  of 
temporary agency workers.  

such 

A  large  majority  of  countries  indicated 
that the legislation does not envisage a 
possibility to derogate from the principle 
of equal basic working and employment 
conditions 
agency 
workers by way of collective agreement. 
As a result, this judgment is unlikely to 

temporary 

for 

Ireland, 

Conversely,  as  specified  in  the  reports 
for  Belgium 
the 
and 
clarification  provided  by  the  CJEU  is 
expected  to  guide  the  interpretation  of 
national courts in Member States where 
collective  agreements  can  derogate 
form  the  principle  of  equal  treatment. 
Similarly,  in  Denmark,  the  ruling  is 
reported to confirm the Danish acquis on 
this matter, while providing guidance for 
the Labour Court in future case law.  

the  Swedish 

Furthermore, 
report 
emphasised that the fact that the ruling 
provides a stricter and more foreseeable 
legal  basis  for  the  claims  of  individual 
workers  may  lead  to  more  disputes, 
raising 
about  Swedish 
collective agreements. 

questions 

In  Germany,  the  impact  of  the  ruling 
has  been  signalled  to  concern  the 
relationship  between  state  legislation 
and collective bargaining, as the latter is 
protected  as  a  fundamental  right  and 
collective  agreements  are  generally 
granted  a  ‘guarantee  of  correctness’, 
which implies limited judicial control. 

Finally,  in  the  Netherlands,  the  ruling 
may  require action to bring regulations 
in line with the CJEU’s ruling, especially 
for situations in which no comparison is 
possible  with  the  workers  that  have 
been  directly  recruited  by  the  user 
undertaking,  and  thus  no  assessment 
the 
can  be  made  regarding  both 
comparability  of  the  basic  working  and 
employment 
the 
conditions 
countervailing  benefits  afforded  to  the 
temporary agency workers.

and 

December 2022 

4 

 
 
 
 
 
 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Austria 

Summary  

(I) The COVID-19 Special Care Leave for Employees has been extended.  

(II) Two decisions of the Austrian Supreme Court dealt with consecutive fixed-term 
employment contracts. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Measures to respond to the COVID-19 crisis 

1.1.1  Special Care Leave 

The  Amendment  of  the  Employment  Contract  Law  Amendment  Act,  Änderung  des 
Arbeitsvertragsrechts-Anpassungsgesetz AVRAG, 666/BNR, § 18b para 1 to 1c AVRAG 
on Special Care Leave during COVID-19 was extended for the 8th time, until the end of 
the school year 2023.  

The Special Care Leave allows employees who have care responsibilities for children or 
for persons with disabilities to take paid leave from work for up to three weeks in case  

 

 

 

schools/caretaking facilities are closed based on a public ordinance; or  

for  children  under  the  age  of  14,  in  case  they  cannot  attend  school  or  care 
facilities  due  to  a  full  or  partial  closure  in  accordance  with  an  administrative 
order; or 

for  persons  with  disabilities,  who  need  care,  in  case  they  cannot  attend  their 
school/care facility in accordance with a public ordinance or full/partial closure in 
accordance  with  an  administrative  order.  The  same  applies  to  persons  with 
disabilities, who need care but cannot wear an FFP2 mask due to their disabilities.  

The  employer  continues  will  be  refunded  by  the  COVID-19  crisis  fund  for  any 
remuneration paid to employees who take special care leave.  

See here for further information. 

2 

Court Rulings 

2.1  Fixed-term work of theatre actors 

Supreme Court, 8 ObA 58/22w, 21 November 2022 

The plaintiff was a ballet dancer at the Vienna Staatsoper and had been employed under 
consecutive fixed-term contracts. The contracts were concluded for one year and were 
automatically extended for another year unless one of the parties informed the other 
party in advance that no such renewal would occur.  

The applicable law is the Theatre Workers Act (Theaterarbeitsgesetz – TAG), which in § 
27 entitled ‘declaration of non-renewal’ allows for the conclusion of consecutive fixed-
term employment contracts (unofficial translation by the author): 

“If the theatre employment contract has been concluded for a fixed term and for 
at least one year, the theatre shall notify the employee in writing by 31 January 
of the year in which the employment contract ends that the employment contract 
will not be renewed. If the theatre fails to give such notice or gives such notice 
late,  the  employment  contract  shall  be  extended  for  another  year  unless  the 
employee notifies the theatre in writing at the latest by 15 February of the year 

December 2022 

5 

 
 
 
Flash Report 12/2022 on Labour Law 

in which the employment contract ends that he/she does not agree to a renewal 
of the employment contract.” 

The  employee  claimed  that  such  a  provision  contravenes  the  Fixed-Term  Directive 
1999/70/EC  and  that  she  therefore  was  employed  under  a  contract  of  indefinite 
duration.  The  employer,  the  Vienna  Staatsoper,  argued  that  consecutive  fixed-term 
employment relationships are a special system which reflect the distinct features of the 
theatre sector and that they therefore do not fall under the scope of the Directive. There 
is no risk of abuse as theatre employment under the TAG are characterised by a higher 
degree  of  protection  than  ordinary  employment  relationships  because  they  can,  in 
principle, only be terminated once a year. 

The Labour Court as well as the Court of Appeals ruled in favour of the employee and 
considered  the  provision  in  the  TAG  as  insufficient  to  fight  the  abuse  of  consecutive 
fixed-term employment contracts. They applied a general civil law provision (§ 879 of 
the Civil Code) which considers legal acts that are against bones mores nil and therefore 
void. If a declaration of non-renewal is not based on good cause it is considered a breach 
of this provision. 

The Supreme Court  extensively discussed the  application of the Fixed-Term Directive 
1999/70/EC  –  it  was  considered  applicable  although  the  declaration  of  non-renewal 
under the system of the TAG is functionally very similar to a dismissal by giving notice. 
Still, the contract is formally a fixed-term contract and therefore falls under the scope 
of the Fixed-Term Directive 1999/70/EC. It then points out that pursuant to § 5 (1), the 
Member  States  may  make  the  admissibility  of  a  consecutive  fixed-term  employment 
contract conditional, inter alia, on the existence of objective reasons. In the following, 
the CJEU decision C-331/17, Sciotto is discussed; the Supreme Court summed up the 
differences between the Italian case before the CJEU and the present Austrian case. 

In the Austrian context, the question arises whether it is objectively justified to impose 
a general time limit on artistic work for the standard performance period, for example 
because this is intended to allow directors to recast artists with the personalities they 
deem appropriate for the respective roles. However, the Supreme Court does not deem 
it necessary to assess whether this concept is also feasible for choirs and ballets. Nor 
did it consider it necessary to make a conclusive assessment on whether an equivalent 
protection of the employee against abuse within the meaning of § 5 of the Fixed-Term 
Directive 1999/70/EC can already be seen in the fact that the employer must issue a 
declaration  of  non-renewal,  whereby  the  employment  relationship  can  only  be 
terminated  on  a  certain  date  once  a  year  and  in  compliance  with  a  particularly  long 
notice period, which far exceeds the usual notice period. 

This is based on the understanding that a request for a preliminary ruling by the CJEU 
to clarify the resulting questions does not have to be made in this case because even 
the  positive  assumption  of  a  transposition  contrary  to  the  Directive—contrary  to  the 
legal opinion of the lower courts—could not lead to the claim being granted. 

The CJEU has already commented on the fact that § 5 (1) of the Fixed-Term Directive 
is not sufficiently unconditional and precise in terms of its content for an individual to 
be  able  to  rely  on  it  before  a  national  court,  if  only  because  it  is  not  possible  to 
sufficiently  determine  the  minimum  protection  that  would  need  to  be  granted  in  any 
case under § 5 (1) (CJEU case C-378/07, Angelidaki and Others, para. 196). 

However, when applying domestic law, national courts must interpret it to the extent 
possible in the light of the wording and purpose of the Directive in question to achieve 
the  result  set  out  in  it.  This  duty  to  interpret  national  regulations  in  conformity  with 
Community law concerns all national law, whether adopted before or after the Directive 
at issue (CJEU case C-378/07, Angelidaki and Others, para 197). The Supreme Court 
pointed out that the TAG was passed after the Fixed-Term Directive had been issued 
and that the wording of the Act is very  clear  – applying the Austrian methodology  of 
law, it is not possible to go beyond it nor apply general notions of civil law as the lower 
courts did. The Supreme Court therefore rejected the claim. 

December 2022 

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This well-argued decision again shows the limits of the direct application of a Directive, 
on the one hand, as well as of the duty to interpret national legislation in conformity 
with  European  Union  law,  on  the  other.  The  Fixed-Term  Directive  based  on  a  social 
partner agreement is definitely less precise than many newer directives and therefore 
the direct application of § 5 (1) is not possible. One question that is still unanswered is 
whether  the  vertical  application  inter  privatos  would  have  been  possible  either  way. 
Usually,  the  CJEU  only  does  so  if  there  is  a  basis  for  it  in  the  CFR  –  and  protection 
against the abuse of fixed-term employment relationships is not mentioned there. One 
would have to argue that is a circumvention of the right to protection against unjustified 
dismissal in Article 30 CFR. This could have been another argument against a request 
for a preliminary ruling. 

The decision also shows that the duty to interpret Member State legislation in conformity 
with Union law is not a panacea, either. National methodology also has its limits when 
the legislator explicitly opts for a solution that might be in breach of Union law  – the 
distribution of powers in civil law countries prohibits interpretations by the courts that 
contravene the legislator’s will. 

2.2  Fixed-term work at universities 

Supreme Court, 8 ObA 21/22d, 24 October 2022  

The ruling dealt with the facts of a case before the CJEU in C-274/18, Minoo Schuch-
Ghannadan. The preliminary ruling stated that the Part-time Work Directive 97/81/EC 
must  be  interpreted  as  precluding  national  legislation  (in  casu  the  possibility  of 
consecutive  fixed-term  contracts  for  scientific  personnel  of  public  universities)  which 
lays  down  a  maximum  duration  of  employment  relationships  for  fixed-term  workers 
which  is  longer  for  part-time  than  for  comparable  full-time  workers,  unless  such  a 
difference in treatment is justified on objective grounds and is proportionate to those 
grounds, which it is for the referring court to determine.  

The Austrian courts had to assess whether the possibility of a part-time worker to work 
under  consecutive  fixed-term  contracts  for  a  longer  duration  than  a  comparable  full-
time employee was more favourable than the shorter duration that applies to the latter. 
The two lower courts stated that this was not the case as the claimed advantages for 
career management were not demonstrable. 

The Supreme Court upheld this assessment and stated after an extensive and balanced 
weighing  of  all  possible  arguments  that  as  a  result,  the  plaintiff’s  renewed,  repeated 
fixed-term  contracts  could  not  be  justified  either  by  the  objective  of  the  plaintiff's 
“scientific  advancement”  or  by  the  need  for  renewed  assignment  of  the  plaintiff  to  a 
specific (fixed-term) project. 

Diverging from the other decision reported above involving the ballet dancer under the 
Theatre  Work  Act  (TAG),  the  wording  and  context  of  the  applicable  University  Act 
(Universitätsgesetz – UG 2002) in § 109 enables courts to interpret it in a way that an 
open-ended employment relationship is presumed. 

The  decision  is  in  line  with  the  preliminary  ruling  and  not  unexpected.  The  Austrian 
legislation has already taken action and since an amendment to the University Act was 
introduced in 2021 (BGBl I 93/2021), the maximum period for fixed-term employment 
contracts and their renewal are now the same for full- and part-time employees. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

December 2022 

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In  Austria,  the  relevant  provision  for  equal  pay  is  §  10  (1)  of  the  Temporary  Agency 
Work  Act  (Arbeitskräfteüberlassungsgesetz  –  AÜG)  (unofficial  translation  by  the 
author): 

“The temporary agency worker shall be entitled to an appropriate remuneration 
in line with local practice, which shall be paid at least once a month and settled 
in writing. Standards of collective law to which the hiring party (the temporary 
work  agency)  is  subject  shall  remain  unaffected.  When  assessing  the 
appropriateness of the remuneration, the remuneration to be paid to comparable 
employees who carry out comparable activities in the user undertaking under a 
collective agreement or by law shall be taken into account for the duration of the 
assignment.  In  addition,  other  binding  provisions  of  a  general  nature  that  are 
applicable to comparable employees who carry out comparable activities in the 
user undertaking shall  be taken into account,  unless  a  collective agreement to 
which  the  temporary  work  agency  is  subject  and  a  collective  agreement, 
regulation  or  statutory  regulation  on  remuneration  in  the  user  undertaking 
applies.” 

This provision is applicable to all parties (temporary work agency and user undertaking) 
and may not be deviated from unless in favour of the temporary agency worker. This 
also  applies  to  collective  bargaining  agreements.  Therefore—unlike  in  the  German 
case—no provision exists that allows deviation from the equal pay principle by way of 
collective bargaining. In a first assessment, it seems that the CJEU’s  decision will not 
have any practical implications in Austria. 

4 

Other Relevant Information 

4.1  Collective bargaining 

Following  the  nationwide  rail  strike  (see  November  2022  Flash  Report),  a  collective 
bargaining agreement for the Austrian railway sector was concluded. The average raise 
is 8 per cent (with lower income salaries increased by up to 12 per cent), and by at least 
EUR  210/month  as  of  01  December.  The  increase  will  continue  to  rise  in  two  steps 
throughout the year (to EUR 250 and EUR 290), and once more in February 2024. In 
2024, an additional compensation for the inflation in 2023 will be agreed.  

See here for further information.  

December 2022 

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Flash Report 12/2022 on Labour Law 

Belgium 

Summary  

(I) The Whistleblowing Directive 2019/1937 has been transposed into Belgian law.  

(II)  A  new  collective  agreement  contains  the  updated  list  of  information  the  user 
enterprise of temporary agency workers must provide to its works council.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Whistleblowers 

The Law of 28 November 2022 on the protection of whistleblowers of breaches of Union 
or national law established within a legal entity in the private sector of industry, Moniteur 
belge,  15  December  2022  transposes  the  European  Whistleblowing  Directive 
2019/1937. 
This  law  will  enter  into  force  on  16  February  2023,  subject  to  exceptions  concerning 
legal  entities  in the  private  sector  with  50  to  249  employees  and  entities  engaged  in 
financial services, products and markets. In principle, legal entities with fewer than 50 
employees are exempt from the obligations. 

Whistleblowers are protected against breaches of the legal or regulatory provisions or 
directly  applicable  European  provisions  and  implementing  rules  concerning  public 
procurement, financial services, products and markets, prevention of money laundering 
and terrorist financing, product safety and conformity, transport safety, environmental 
protection,  radiation  protection  and  nuclear  safety,  food  and  feed  safety,  health  and 
welfare,  public  health,  consumer  protection,  privacy,  fighting  tax  fraud,  social  fraud, 
harming Union financial interests as well as the internal market. 

The personnel scope extends to whistleblowers working in the private sector who have 
obtained  information  about  breaches  in  a  work-related  context,  such  as—at  least—
employees,  self-employed  persons  and  anyone  working  under  the  supervision  and 
direction of (sub)contractors and suppliers. The law also applies to whistleblowers who 
report  or  disclose  information  about  breaches  that  occurred  in  an  employment 
relationship that has since ended, and for notifiers whose work relationship has yet to 
begin,  if  information  about  breaches  was  obtained  during  the  recruitment  process  or 
other pre-contractual negotiations. 

For the protection to apply, reporters must have had reasonable grounds to believe that 
the reported information about breaches was accurate at the time of reporting and that 
it fell within the scope of this Law; and they reported information internally or externally, 
or disclosed information in accordance with the provisions of this Law. The Law therefore 
distinguishes  regulations  regarding  an  internal  and  external  reporting  channel  from 
which  a  reporter  can  choose.  By  16  February  2023,  legal  entities  with  at  least  50 
employees will have to establish such an internal reporting channel. For legal entities 
with 50 to 249 employees, this should be in place by 17 December 2023. Legal entities 
with fewer than 50 employees have the option of establishing such an internal reporting 
procedure, although such entities in the financial sector are always required to do so. 
In  terms  of  the  external  reporting  channel,  some  rules  have  also  been  put  forward. 
Thereby, the federal Ombudsmen are in charge of coordinating external reporting in the 
private sector. 

Furthermore, the Law  contains some non-cumulative conditions regarding disclosures 
in order for some protection to apply to the whistleblower. For example, the respective 
person  must  have  made  a  report,  either  internal  or  external,  following  which  no 
appropriate and timely action was taken. In addition, the protection also applies if the 
person has good reason to believe that the breach may represent an imminent or real 

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Flash Report 12/2022 on Labour Law 

danger  to  the  public  interest;  or,  in  the  case  of  external  reporting,  there  is  a  risk  of 
reprisal or the breach is unlikely to be remedied effectively. 

The protection consists in the prohibition of retaliation, such as suspension, dismissal or 
unequal  treatment,  even  if  it  is  a  mere  threat  or  attempt  at  retaliation.  Support 
measures are also provided, such as information and advice on available remedies and 
procedures to protect against retaliation. Any person who believes he or she is a victim 
may file a reasoned complaint with the federal coordinator, who will initiate an out-of-
court protection procedure. 

1.2  Temporary agency work 

Collective  Bargaining  Agreement  (CBA)  No.  108/3,  concluded  in  the  National  Labour 
Council on 29 November 2022 amending CBA No. 108  of 16 July 2013 on temporary 
agency work replaces Article 34, §1, 2° CBA No. 108. Article 34 concerns the information 
to be provided by the user enterprise of temporary workers to its works council, or in 
its absence, to the trade union delegation within the user enterprise to provide evidence 
of the need to use successive daily contracts.  

Unlike  before,  evidence  for  the  need  for  flexibility  which  the  user  undertaking  must 
provide to make use of successive daily contracts for temporary agency work must be 
statistically substantiated only at the express request of the employee representatives 
in the works council, or, failing that, at the request of the trade union delegation, and 
may be supplemented by elements that show that the user undertaking has investigated 
alternatives to the use of consecutive daily contracts for temporary agency work. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

According  to  the  Temporary  Agency  Workers  Directive  2008/104,  for  the  duration  of 
their assignment at a user undertaking, the essential working conditions of temporary 
agency workers must be at least the same as those that  would apply to them if they 
had been recruited directly by the said undertaking for the same job. Essential working 
conditions refers to working time, overtime, breaks, rest periods, night work, holidays 
and public holidays and pay.  

This  may  be  derogated  from,  according  to  the  European  Temporary  Agency  Work 
Directive, insofar as an adequate level of protection is provided to temporary agency 
workers.  Following  a  German  case,  the  CJEU  has  clarified  under  which  conditions  a 
collective agreement can derogate from the principle of equal treatment of temporary 
agency  workers  downwards.  To  ensure  the  general  protection  of  temporary  agency 
workers, such a collective bargaining agreement must, in return, grant advantages in 
respect of those essential conditions which compensate for the difference in treatment 
experienced  by  the  temporary  agency  workers  concerned.  These  benefits  must 
therefore relate to the essential conditions of the Temporary Agency Work Directive, in 
particular working time, overtime, breaks, rest periods, night work, holidays and public 
holidays, or remuneration. 

In Belgium, Articles 10 and 19 of the Temporary Agency  Employment Law of 24 July 
1987  guarantee  equal  treatment  of  temporary  workers  in  relation  to  permanent 
employees of the user company.  

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Flash Report 12/2022 on Labour Law 

Unlike the broader derogation possibilities in Directive 2008/104, Article 10(2) of the 
Belgian Temporary Agency Employment law allows for derogations from the principle of 
equal  treatment  only  as  regards  pay,  but  not  as  regards  other  essential  working 
conditions. 

It seems that this derogation possibility concerning pay is only very limited in Belgium, 
especially  with  regard  to  end-of-year  bonuses  (CBA  of  19  April  2016  of  the  Joint 
Committee  on  Temporary  Agency  Work  concerning  the  end-of-year  bonuses  for 
temporary agency workers). Under the CBA, temporary agency workers receive a bonus 
from a sectoral fund for temporary employment that fully compensates any absence of 
an end-of-year bonus for the permanent employees of the user company.  

According to the CJEU’s ruling C-311/21, if a different (lower) pay for temporary workers 
were contained in a Belgian CBA, the CBA would have to compensate the reduced pay 
of  temporary  agency  workers  compared  to  workers  recruited  directly  by  the  user 
undertaking by providing benefits that offset this difference in relation to the duration 
of working time, overtime, breaks, rest periods, night work, holidays, public holidays of 
other  forms  of  financial  compensation.  The  ruling  therefore  has  implications  for  the 
Belgian legal order. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

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Flash Report 12/2022 on Labour Law 

Bulgaria 

Summary  

Nothing to report. 

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Case  C-311/21,  15  December  2022  does  not  have  any  implications  for  Bulgaria. 
Temporary  agency  workers  are  entitled  to  the  same  protection  as  regular  workers  in 
accordance  with  the  general  provisions  on  basic  working  and  employment  conditions 
under national and EU law.  

Article 107u LC stipulates that a worker employed to perform work at a user undertaking 
shall  have  the  right  to  remuneration;  leave  of  absence  as  provided  for  in  this  Code; 
membership  in  a  trade  union  association;  participation  in  the  general  meeting  of 
employees in the undertaking; information on all issues related to the performance of 
the assignment; participation in a collective agreement; settlement of collective labour 
disputes;  social,  welfare  and  cultural  services;  health  and  safety  at  work;  initial  and 
continued  training  in  accordance  with  the  position  and  nature  of  work  at  the  user 
undertaking;  compensation  under  the  terms  and  in  accordance  with  the  procedure 
provided  for  in  the  Social  Insurance  Code;  other  rights  directly  related  to  the 
performance of the work assigned.  

Collective labour agreements may not  contain clauses that are less  favourable to the 
employees than the provisions of the law or of a collective agreement, which is binding 
on the employer (Article 50q (2) LC). 

Temporary agency workers have the same rights and obligations as employees recruited 
directly by the user undertaking. Under Article 107u (2 LC), such employees may not 
be put in a less advantageous position only on account of the temporary nature of their 
work compared with the other employees performing the same or similar work at the 
user undertaking, unless a law makes entitlement to certain rights that are conditional 
upon  the  qualifications  acquired  or  skills  obtained.  Where  no  other  employees  are 
employed  to  perform  the  same  or  similar  work,  the  workers  employed  to  perform 
temporary work at the user undertaking may not be put in a less advantageous position 
than other employees working at the user undertaking. 

Pursuant  to  Bulgarian  legislation,  employment  contracts  with temporary  agency  work 
are  only  concluded  for  a  fixed  termed.  They  may  only  last  until  the  completion  of  a 
particular assignment or for the replacement of an employee who is absent from work 
(Article 107p (2) LC). They have the same rights as other employees, presented above 
under 1. and 2. 

The overall protection of temporary agency workers within the meaning of Article 5(3) 
of  Directive  2008/104  in  Bulgaria  is  regulated  by  law  (see  above  –  p.  1—3).  Social 

December 2022 

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partners cannot maintain or conclude collective agreements that authorise differences 
in treatment with regard to basic working and employment conditions to the detriment 
of those workers. As already mentioned above, a collective agreement may not regulate 
labour  and  social  insurance  issues  of  employees,  which  are  regulated  in  mandatory 
provisions of the law (Article 50 (1) LC). 

Collective agreements providing differences in treatment with regard to basic working 
and employment conditions to the detriment of temporary agency workers are therefore 
not possible in Bulgaria. In case such provisions are issued, they will be null and void 
due to contradicting with the provision of Article 107р (2) LC, according to which the 
user  undertaking  has  the  obligation  to  provide  workers  who  perform  temporary 
assignments  with  basic  working  and  employment  conditions  and  equal  treatment,  as 
provided to the other employees employed by the undertaking who perform the same 
or similar work in the same or in a similar position, including healthy and safe working 
conditions. In such cases, any party to the collective agreement as well as any employee 
who is subject to the application of the agreement, has a right to bring a legal action 
before the court for a declaration of nullity of the collective agreement or of individual 
clauses thereof, provided such clauses are in conflict with or circumvent the law (Article 
60 LC). There is no case law on this issue.  

For  temporary  agency  workers  performing  a  temporary  assignment,  the  user 
undertaking has the obligation to inform the temporary work agency of the conditions 
of the employees who perform the same or similar work in the same or similar position, 
and  of  any  changes  in  such  conditions  (Article  107r  (1),  issue  7  LC).  This  obligation 
covers  the  provision  of  information  not  only  about  the  basic  working  conditions,  but 
about all conditions under which the relevant work is performed. The information must 
also cover the conditions stipulated in the collective labour agreement to which the user 
undertaking is bound. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

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Flash Report 12/2022 on Labour Law 

Croatia 

Summary  

(I)  An  amendment  to  the  Labour  Act  has  been  adopted,  also  introducing  a 
presumption of employment relationship for digital platform workers.  

(II) Directive (EU) 2020/1057 on the posting of drivers in the road transport sector 
has been transposed into Croatian legislation.  

(III) A new Family Benefits Act has been adopted. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Undeclared work 

The Act on Suppression of Undeclared Work has been adopted (see Official Gazette No. 
151/2022). It defines the notion of undeclared work, regulates measures to suppress 
undeclared work, activities to encourage the registration of work, the keeping of records 
of inactive persons and liability for violations of the provisions of this Act. It introduces 
a  presumption  of  a  six-month  duration  of  employment  relationship.  When  the  labour 
inspector determines the existence of undeclared work, the worker who performed such 
work  will  be  considered  to  have  continuously  worked  under  a  full-time  employment 
relationship with the employer for the duration of the preceding six months on the day 
on which the inspection was carried out and the fact of undeclared work was established, 
unless  the  information  available  to  the  inspector  during  the  inspection  clearly 
demonstrates  that  the  employment  relationship’s  previous  duration  was  shorter  or 
longer (Article 6).  

Employers who do not register workers or use the services of workers who are allegedly 
self-employed will be black-listed on the Ministry of Labour’s website. Employers will be 
fined  for  unregistered  domestic  and  alien  workers.  The  undeclared  worker  will  be 
immediately registered, and the employer will be required, in addition to a fine, to pay 
all other obligations (social security contributions) for the undeclared worker for the past 
6 months. 

1.2  Amendment to the Labour Act 

An amendment to the Labour Act has been adopted (see Official Gazette No. 151/2022). 

The novelties worth mentioning are as follows: 

•  The conclusion of a fixed-term employment contract is limited to a maximum of 
three  times  over  three  years,  and  an  objective  reason  for  concluding  a  fixed-
term contract is necessary; 

  what is not considered an interruption of the successive fixed-term contracts is 
regulated more strictly, i.e. the duration of the break between the termination 
of a fixed-term employment contract and the conclusion of a new one which is 
not  considered  an  interruption  of  successive  fixed-term  contracts  is  extended 
from two to six months; 

•  a right of part-time worker to request full-time employment is regulated in more 

detail; 

• 

• 

it is possible to establish the right of the worker in the employment contract to 
freely determine his/her place of work; 

the Act differentiates between working from home from teleworking (work using 
IT technology); 

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Flash Report 12/2022 on Labour Law 

• 

the employer no longer needs to include an annex to the employment contract 
when,  in  the  case  of  force  majeure  (such  as  epidemics),  the  worker  needs  to 
work from home; this is limited to a period of 30 days; if the force majeure lasts 
longer than 30 days, there is an obligation on the part of the employer to attach 
an  annex  to  the  employment  contract  and  regulate  the  specific  rights  of  the 
worker who has to work from home; 

• 

the  right  of  the  worker  to  request  working  from  home  is  prescribed  in  certain 
situations (in case of sickness/disability of the worker; to provide care for small 
children and other dependent family members); 

•  child labour i.e. work performed by pupils/ work-based learning is regulated in 
more  detail,  as  is  the  protection  of  other  vulnerable  categories  of  workers 
(pregnant workers, working parents, etc.); 

• 

• 

• 

• 

• 

there  is  no  longer  a  possibility  to  derogate  from  the  principle  of  equal  basic 
working and employment conditions for temporary agency workers in collective 
agreements; 

the time of availability of workers after working hours to take calls and respond 
to e-mails from their employer is defined; 

it is possible to conclude employment contracts for permanent seasonal jobs for 
a fixed and indefinite period; 

the worker will be able to work 8, and exceptionally 16 hours of overtime a week; 

the  employer  may  extend  the  duration  of  the  probation  period  in  case  of 
temporary absence of the employee during the probation period; 

•  periods  of  training  for  work  is  considered  working  time  and  where  possible, 

should be organised during established working hours; 

• 

• 

• 

the rights to paid and unpaid leave are regulated in more detail; among others, 
the right of workers-carers of dependent family members to unpaid leave of 5 
working days has been transposed from the Work-Life Balance Directive; 

the content of the notion of salary is regulated in more detail; 

in  case  of  interruption  of  work  due  to  extraordinary  circumstances  (such  as 
epidemics),  the  worker  will  have  the  right  to  compensation  of  wages  in  the 
amount of 70 per cent of his/her average salary over the previous three months; 

•  a  worker  who,  at  the  time  of  termination  of  the  employment  contract,  has 
reached the age of 65 and has 15 years of insurance periods cannot exercise the 
right to a notice period nor is he/she entitled to severance pay; 

• 

the procedure in case of harassment and sexual harassment has been improved, 
i.e. an employer who employs at least 20 workers is required, with prior written 
consent of the person the employer proposes to appoint, to appoint one person, 
while an employer who employs more than 75 workers is required to appoint two 
persons of different genders who, in addition to the employer, are authorised to 
receive and  resolve complaints related to the  protection of dignity of  workers. 
Furthermore, the confidential counsellor is appointed with prior consultation with 
the works council; 

•  so far, unionised and non-unionised workers were entitled to same level of rights 
concluded  by  the  collective  agreements;  according  to  the  new  provision,  the 
members of trade unions are entitled to a higher level of rights compared to non-
unionised workers; more precisely, the pecuniary rights (jubilee award, holiday 
pay, Christmas bonus, etc.), can be agreed upon in a collective agreement to a 
greater extent for the members of the trade union that negotiated the collective 
agreement;  the  total  amount  of  such  rights  may  not  be  agreed  on  an  annual 
basis for more than twice the average annual union membership fee of the unions 

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Flash Report 12/2022 on Labour Law 

that  negotiated  the  collective  agreement;  such  rights  are  exercised  by  those 
members of the trade union which the trade union has informed the employer 
about. Such provisions are problematic from the point of view of the right to not 
be a member of a union because they encourage membership in representative 
trade  unions  (members  of  smaller  unions  that  are  not  representative  for 
collective bargaining do not have a higher level of pecuniary rights), and at the 
same  time,  they  give  too  much  power  to  representative  unions  to  determine 
which union members have the right to a higher level of pecuniary rights; 

•  provisions on the regulation of work through digital platforms (16 new Articles 
of the Labour Act) will enter into force in 2024. Among others, the presumption 
of the employment relationship of the digital platform worker and the exception 
to  it  are  defined.  In  this  context,  the  shifting  of  the  burden  of  proof  from  the 
worker to the digital platform and the aggregator is prescribed. The notions of a 
digital  platform  and  an  aggregator  are  defined  and  their  joint  liability  for  the 
obligations  towards  the  worker  is  provided.  As  regards  the  exception  to  the 
assumption  of  the  existence  of  an  employment  relationship,  it  should  be 
mentioned that it does not apply to a natural person who, by working through 
digital work platforms in a particular quarter of the calendar year, did not receive 
more than 60 per cent of the gross amount of three monthly minimum wages as 
determined  by  a  separate  regulation.  If  meanwhile  the  Proposal  Directive  on 
Platform Workers is adopted, it will be necessary to amend these provisions in 
line with the Directive; 

• 

the  obligation  to  pay  an  increase  in  the  hourly  rate  for  work  on  Sundays  and 
holidays by 50 per cent of the regular hourly rate is also new (such regulation 
was previously part of collective agreements). 

1.3  Third-country nationals 

An amendment to the Aliens Act has been adopted (see Official Gazette No. 151/2022) 
due to Croatia's accession to the Schengen area. 

1.4  Work-life balance 

The  new  Family  Benefits  Act  has  been  adopted  (see  Official  Gazette  No.  152/2022). 
Despite the fact that the last amendment to the Family Benefits Act was only recently 
adopted,  i.e.  in  July  2022,  the  Work-life  Balance  Directive  has  been  transposed  into 
Croatian law, the legislator decided to adopt a new Act.  

Its purpose is to raise the salary compensation for family leave-takers, to allow certain 
types of work of family leave-takers, to allow family leave-takers who have concluded 
an employment contract when using the leave to postpone the use of unused period of 
leaves  and  to  introduce  a  new  right  of  adoption  leave  to  the  partner  of  the  adoptive 
parent analogous to the duration of paternity leave. 

1.5  Posting of workers 

The  amendment  to  the  Act  on  Working  Time,  Mandatory  Rest  Periods  for  Mobile 
Workers, and Recording Devices in Road Traffic (see Official Gazette No. 152/2022) has 
been adopted to transpose Directive (EU) 2020/1057 of the European Parliament and 
of  the  Council  of  15  July  2020  laying  down  specific  rules  with  respect  to  Directive 
96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and 
amending Directive 2006/22/EC as regards enforcement requirements and Regulation 
(EU) No. 1024/2012 into Croatian law. 

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Flash Report 12/2022 on Labour Law 

The amendment defines the notions of the place of work, mobile worker, night work, 
etc., regulates the posting of drivers, defines the bilateral exchange of information via 
the IMI system and the misdemeanour provisions are prescribed in more detail. 

1.6  Civil servants 

The amendment to the Civil Servants Act (see Official Gazette No. 141/2022) has been 
adopted.  It  provides  that  retired  civil  servants  can  work  as  fixed-term  and  part-time 
civil servants until they reach the age of 67 years. Furthermore, civil servants who fulfil 
the requirements for old-age pensions can continue to work as civil servants until they 
reach the age of 67 years. 

1.7  Occupational health and safety 

The  amendment  to  the  Regulations  on  the  Performance  of  Occupational  Health  and 
Safety Duties has been adopted (see Official Gazette No. 154/2022). It defines, among 
others, the qualifications of an expert for occupational health and safety and prescribes 
the enlisting of experts for occupational health and safety in the register of training in 
occupational health and safety and the performance of occupational health and safety 
tasks. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement  

Since  01  January  2023,  when  the  amendment  to  the  Labour  Act  entered  into  force, 
there no longer is a possibility to derogate from the principle of equal basic working and 
employment  conditions  for  temporary  agency  workers  by  a  collective  agreement. 
Therefore, the CJEU’s judgment will not have any implications for Croatian law. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

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Cyprus 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1   Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

In its decision, the Court dealt with the equality principle for temporary agency workers. 
Between  January  and  April  2017,  TimePartner  Personalmanagement  GmbH,  a 
temporary work agency, employed CM as a temporary worker on the basis of a fixed- 
term contract. During her assignment, CM was an order picker with a user company in 
the  retail  sector.  For  this  work,  she  received  a  gross  hourly  wage  of  EUR  9.23,  in 
accordance  with  the  collective  agreement  applicable  to  temporary  workers  concluded 
between  two  unions  which  TimePartner  Personalmanagement  GmbH  and  CM  were 
members  of,  respectively.  This  collective  agreement  derogated  from  the  principle  of 
equal treatment recognised in German law, by providing for a lower remuneration for 
temporary  agency  workers  than  that  paid  to  workers  of  the  user  company  under  the 
terms of a collective agreement for workers in the retail sector in the Land of Bavaria 
(Germany), namely a gross hourly wage of EUR 13.64. CM lodged an appeal with the 
Arbeitsgericht  Würzburg  (Labour  Court  of  Würzburg,  Germany)  seeking  to  obtain  an 
additional remuneration totalling EUR 1 296.72, equivalent to the difference in salary 
between  temporary  workers  and  comparable  workers  recruited  directly  by  the  user 
undertaking.  The  claimant  invoked  a  breach  of  the  principle  of  equal  treatment  of 
temporary workers enshrined in Article 5 of Directive 2008/104. After the dismissal of 
this claim in first instance and on appeal, CM brought an action for revision before the 
Bundesarbeitsgericht (Federal Labour Court, Germany), which referred five questions to 
the CJEU for a preliminary ruling on the interpretation of this provision. 

In Cyprus, the law purporting to transpose the Temporary Work Agency Directive is (Ο 
περί  της  Εργασίας  μέσω  Επιχείρησης  Προσωρινής  Απασχόλησης  Νόμος  του  2012, 
174(Ι)/2012. Ερμηνεί), herein referred to as TWA Law. The Cypriot law does not allow 
for  any  derogation  of  the  principle  of  equal  treatment  while  respecting  the  overall 
protection of temporary agency workers. The TAW law stipulates that the principle of 
equal  treatment  applies.  The  basic  working  and  employment  conditions  of  temporary 
agency workers shall, for the duration of their assignment at a user undertaking, be at 
least those that would apply if they had been recruited directly by that undertaking to 
occupy the same job in accordance with Article 5 of Directive 2008/104/EC (Article 18 
of the TWA Law). Temporary agency workers also enjoy the same level of protection 
with reference to occupational health and safety conditions (Article 18(2) of the  TWA 
Law).  Temporary  agency  workers  are  entitled  to  equal  treatment  as  workers  hired 
directly  by  the  user  undertaking,  as  per  Article  18(1)  of  the  TWA  Law.  The  relevant 
section of the law reads as follows: 

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Flash Report 12/2022 on Labour Law 

“18  (1)  Οι  βασικοί  όροι  εργασίας  και  απασχόλησης  των  προσωρινά 
απασχολούμενων, κατά την περίοδο της παραχώρησής τους σε έμμεσο εργοδότη, 
είναι  τουλάχιστον  αυτοί  που  θα  εφαρμόζονταν  αν  οι  εργοδοτούμενοι  είχαν 
προσληφθεί απευθείας από τον εργοδότη αυτόν για να καταλάβουν την ίδια θέση”. 

This includes health and safety standards (in accordance with Article 18(2) of the TWA 
Law),  the  rights  derived  from  statutes,  subsidiary  legislation  and  administrative 
provisions, collective agreements and practices. The relevant section of the law (Article 
18(3) of the TWA Law) reads as follows: 

“(3) Οι κανόνες που ισχύουν στην επιχείρηση του έμμεσου εργοδότη, όπως προνοούνται 
από  τη  νομοθεσία,  τις  κανονιστικές  και  διοικητικές  διατάξεις,  τις  τυχόν  εφαρμοστέες 
συλλογικές  συμβάσεις  και  πρακτική  πρέπει  να  τηρούνται  με  τους  ίδιους  όρους  και  ως 
προς τους προσωρινά απασχολούμενους και κυρίως σε σχέση με: (α) την προστασία των 
εγκύων και γαλουχουσών γυναικών και την προστασία των παιδιών και των νέων∙ και β) 
την ίση μεταχείριση ανδρών και γυναικών και κάθε δράση για την καταπολέμηση κάθε 
διάκρισης  λόγω  φύλου,  φυλής  ή  εθνοτικής  καταγωγής,  θρησκείας  ή  πεποιθήσεων, 
ειδικών αναγκών ή αναπηρίας, ηλικίας ή γενετήσιου προσανατολισμού.” 

4 

Other Relevant Information 

4.1  Platform work 

Delivery workers working for the Wolt digital platform went on a week-long strike in all 
major  cities  in  the  Republic  of  Cyprus,  protesting  against  deteriorating  working 
conditions  and  deductions  in  pay  by  agents  who  work  for  the  platform.  The  working 
conditions are grave and are all workers are migrants. Third-country nationals (students 
and  asylum  seekers  in Cyprus)  are  not  allowed  to  sign  up  directly  with  the  platform, 
whilst  Europeans  are.  They  are  legally  required  to  sign  up  via  one  of  the  delivery 
agencies.  

The delivery workers went on strike after their employer reduced their wages further to 
EUR 2.26 from EUR 3.26 per ride. Drivers demanded the compensation for each route 
to be restored to EUR 2.60 as was previously the case, and EUR 4.00 for Fridays and 
EUR 3.50 for Saturdays. They also demanded compensation of EUR 0.50 per kilometre 
for all routes and EUR 1.10 for deliveries in inclement weather. They also demanded the 
percentage  kept  by  the  fleet  managers  to  be  reduced  to  30  per  cent,  instead  of  the 
currently 41 per cent. 

Their  contract  provided  that  apart  from  the  EUR  2.60  per  journey,  the  drivers  would 
receive  compensation  of  EUR  0.25  –  EUR  0.50  for  deliveries  at  a  distance  of  over  1 
kilometre, while for deliveries within one kilometre, they would receive no compensation 
at  all.  They  demanded  compensation  of  EUR  0.50  per  kilometre  for  all  journeys,  and 
compensation of EUR 1.10 for deliveries during rainy weather. The agencies function as 
employers and assign the delivery workers to the digital platform, deduct 41 per cent 
of their wages, while Wolt, which is the company for which they actually work for, claims 
it has no responsibility for these workers. 

These workers’ average income is EUR 400 - EUR 500 per month (interview with one of 
the strikers). The have  to buy the equipment they use (jacket, delivery box, helmet) 
from  Wolt  which  imposes  a  dress  code  and  Wolt-designed  delivery  box.  The  strikers 
demanded the company to cover the cost of the equipment, pay for their fuel, protective 
equipment, and distribution bags and should be required to cover any damages to the 
equipment. 

Trade unions supported the delivery workers’ strike (see SYXKA - PEO, Solidarity with 
striking workers working for digital platform Wolt). 

In response, Wolt asserted that the strikers’ demands are related to their compensation, 
an  issue  managed  by  the  agencies  -  distributor  companies  rather  than  Wolt.  The 

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platform Wolt claimed that it has no direct business relationships with any distributor 
companies  in  Cyprus;  however,  80  per  cent  of  its  delivery  drivers  are  affiliated  with 
distribution firms or companies that the platform works with. 

The strike ended through the mediation of the Department of Labour Relations of the 
Ministry of Labour which invited all parties (striking workers, the trade union PEO and 
SEK,  the  agencies  and  various  digital  platforms)  to  a  structured  dialogue.  A  meeting 
attended  by  representatives  of  the  workers  and  of  the  employers  took  place  on  21 
December 2022. In view of the start of a dialogue, the strikers unanimously decided in 
a General Assembly to end the strike. 

The job is difficult, not well paid and has many hazards. Given that it is difficult for third-
country nationals to find any other work, many of them take a delivery job. It is a very 
dangerous job, with frequent accidents and racist attacks.  

The  regulation  of  platform  work  is  an  issue  that  has  been  tabled  for  discussion  since 
March 2022 by the parliamentary Labour Committee. Trade unions and the opposition 
parties  have  stated  that  there  is  a  need  to  regulate  the  working  environment  for 
employees in this sector, the terms of employment and the protection of their labour 
rights,  the  issue  was  discussed  in  March  2022  in  the  Labour  Committee  of  the 
Parliament. The matter was postponed following the delay of the EU draft directive. 

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Czech Republic 

Summary  

(I)  A  new  act  has  introduced  certain  changes  in  the  regulation  of  working  time  of 
employees in inland navigation, as well as in their assessment of health capacity and 
in their training.  

(II) A new Decree has introduced several changes in the area of occupational health 
services. 

(III) A new Bill aims to transpose the Whistleblowing Directive 2019/1937 into law. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Average salary in the national economy 

The Communication of the Ministry of Labour and Social Affairs No. 426/2022, on the 
announcement of the amount of average salary in the national economy for the 1st and 
3rd  quarters  of  2022  for  the  purposes  of  the  Labour  Code,  has  been  adopted  and 
published. This Communication is issued periodically and is used in various labour-law 
calculations, and is available here. 

1.2  Annual valorisation of compensation payments 

Governmental  Regulation  No.  413/2022  on  adjustment  of  compensation  provided  for 
the loss of earnings after the end of a period of temporary incapacity for work caused 
by a work accident and/or occupational disease and on the adjustment of compensation 
of survivors pursuant to labour law regulations, has been published and will enter into 
effect  on  01  January  2023.  The  annual  valorisation  of  the  above  compensation  takes 
place on regular basis. 

The Regulation is available here. 

The Regulation governs the calculation of the following types of compensation: 

 

compensation  for  loss  of  earnings  after  the  end  of  a  period  of  temporary 
incapacity for work caused by a work accident and/or by an occupational disease; 

 

compensation of survivors (provided to the eligible survivors of employees). 

The amount of compensation is calculated based on the amount of average earnings. 
For the purposes of the calculation, the rate of valorisation of the average earnings is 
adjusted regularly – the amount of average earnings will now be increased by 5.1 per 
cent. 

1.3  Amendments to the Act on Civil Service 

Act No. 384/2022 amending Act No. 234/2014 Coll., on Civil Service, has been adopted 
and  published.  The  Act  will  enter  into  effect  on  01  January  2023.  The  Act  introduces 
certain changes in the public service sphere.  

The text of the Act is available here.  

We informed about this Act already in the November 2022 Flash Report.  

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1.4  Foreign subsistence expenses 

Decree  No.  401/2022  Coll.,  on  the  setting  of  minimum  rates  of  foreign  subsistence 
expenses for 2022, has been adopted and published. The Decree will enter into effect 
on 01 January 2023. 

The Decree is available here. 

The minimum rates of foreign subsistence expenses (payments to employees in case of 
trips abroad) have been reviewed and amended. 

Due to changes in the exchange rates of foreign currencies and/or prices abroad, the 
minimum rates of foreign subsistence expenses (in case of business trips abroad) have 
been amended accordingly. This adjustment takes place regularly. 

1.5  Act on Inland Navigation  

Act  No.  372/2022  amending  Act  No.  114/1995  Coll.,  on  Inland  Navigation,  has  been 
adopted and published. The Act will enter into effect on 01 March 2023. 

The text of the Act is available here.  

The Act introduces new rules on the regulation of inland navigation, including certain 
changes in the regulation of working time of employees in inland navigation, as well as 
in the assessment of health capacity and in the training of these employees.  

The Act also introduces certain changes to the regulation of working hours of employees 
in inland navigation. Notably, the Act sets forth new rules on work breaks for meals and 
rest periods.  

As  already  described  in  many  previous  Flash  Reports,  the  Czech  Labour  Code 
differentiates between  work breaks for meals  and rest periods which are provided by 
the employer after a period of continuous work of maximum six hours, and a reasonable 
time for meals and rest periods when the work cannot be interrupted. The former break 
shall last at least 30 minutes and is considered a rest period, and is thus unpaid; the 
latter, on the other hand, is considered part of the employee’s working hours since the 
employee cannot take a real rest period due to the nature of the work (e.g. an employee 
supervising boilers who cannot leave the boilers’ proximity for more than 5 minutes due 
to the technical requirements of the boilers), and is therefore financially compensated. 

According  to  the  Act,  employees  in  inland  navigation  are  no  longer  entitled  to  a 
reasonable time for meals and rest – they are now only entitled to work breaks for a 
meal and rest.  

In this connection, the Act also specifies another rule, i.e. if the work break for meals 
and rest periods is to be divided in parts, each such part shall be at least 15 minutes. 

The Act further sets certain specific rules with respect to the health capacity of certain 
employees  in  inland  navigation  and  the  assessment  thereof,  and  introduces  certain 
provisions relating to the training of crew members in inland navigation.  

1.6  Living and subsistence minimum 

Regulation No. 436/2022 Coll., on increasing the living and subsistence minimum has 
been adopted, published, and will enter into effect on 01 July 2022. 

The text of the Regulation is available here. 

The Regulation governs the amount of the following: 

  amount of living minimum; 

  amount of subsistence minimum. 

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The amount of living minimum has been increased to CZK 4 860 (i.e. approx. EUR 200). 
The amount of subsistence minimum has been increased to CZK 3 130 (i.e. approx. EUR 
129.2). 

Apart  from  their  original  purpose  (setting  the  minimum  amount  necessary  for  an 
individual  to  survive),  both  these  amounts  are  used  for  the  calculations  of  other 
institutes  and  amounts  throughout  the  entire  legal  system.  The  one  related  to 
employment  and  insolvency  is  the  ‘unseizable  amount’  –  the  amount  that  cannot  be 
deducted from an employee’s salary. 

The  regulation  increases  the  amount  of  living  minimum,  as  well  as  the  amount  of 
subsistence minimum. This automatically leads to an increase in the so-called unseizable 
amount, which serves as a limit to the deductions that can be made to an employee’s 
salary. 

1.7  Minimum wage 

Government  Regulation  No.  465/2022  Coll.,  on  the  amendment  of  Government 
Regulation No. 567/2006, on minimum salary, on the minimum amount of guaranteed 
salary, on delineation of difficult working conditions and on the amount of payment for 
work  under  difficult  conditions,  as  amended,  has  been  adopted  and  published.  The 
Government Regulation will enter into effect on 01 January 2023. The increase in the 
minimum  salary  is  an  adjustment  that  is  regularly  implemented  –  with  certain 
differences compared to past years. 

The  minimum  hourly  salary  is  set  to  CZK  103.80  (i.e.  approx.  EUR  4.29)  and  the 
minimum monthly salary is set to CZK 17,300 (i.e. approx. EUR 714.20). 

The Decree is available here.   

Normally, the government also sets the amount of the so-called guaranteed salary, i.e. 
the  minimum  salary  amounts  for  certain  categories  of  jobs,  depending  on  their 
responsibility,  complexity  and  difficulty.  There  are  8  such  categories.  Category  1 
workers are entitled to the lowest amount of minimum salary above, Category 8 workers 
are  entitled  to  twice  the  amount  of  the  minimum  salary.  The  guaranteed  salary  for 
Category 8 workers is therefore now set to CZK 207.60 (i.e. approx. EUR 8.58) per hour 
and CZK 32 400 (i.e. approx. EUR 1 428.40) per month. 

In the past, the guaranteed salary for Categories 2-7 workers increased proportionally 
as well; however, the government has refrained from increasing the amount in these 
categories.  

1.8  Occupational safety and health 

Decree  No.  452/2022  Coll.,  amending  Decree  No.  79/2013,  on  Occupational  Health 
Services and certain types of assessment care, has been adopted and published. The 
Decree will enter into effect on 01 January 2023. 

The Decree is available here.    

The Czech Ministry of Health has prepared an amendment to the Decree on Occupational 
Health  Services.  Even  though  it  was  expected  that  the  amendment  would  introduce 
substantial  changes  to  occupational  health  services,  after  significant  feedback  from 
other authorities as well as private entities, the number of amendments was reduced. 
Nonetheless, further amendments are planned by the Ministry. 

While  initial  medical  examinations  remain  unaffected  by  the  amendment,  periodic 
medical examinations will be changed quite substantially. Unless there are relevant risks 
to employees’ health (either consisting in hazardous nature of work or in occupational 
risks),  periodic  medical  examinations  will  only  be  performed  upon  the  employee’s  or 
employer’s request. The change will most significantly affect office employees. 

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Flash Report 12/2022 on Labour Law 

Furthermore,  extraordinary  medical  examinations  will  no  longer  be  required  in  cases 
when an employee was absent from work for more than 6 months due to maternal or 
parental leave. 

The amendment also changes the surveillance of occupational health service providers 
of  employers’  workplaces.  In  case  there  are  no  relevant  risks  to  employees’  health, 
health surveillance will not be compulsory. Health surveillance shall only be performed 
in  case  the  occupational  health  service  providers  have  a  mandate  or  the  employer 
voluntarily opts in. In other cases, the frequency in which the providers of occupational 
health services shall survey employers’ workplaces will be extended. 

Also,  the  minimum  time  required  for  consultancy  and  surveillance  of  employers’ 
workplaces will be repealed. 

1.9  Whistleblowing 

The  Government  Bill  on  the  Protection  of  Whistleblowers  has  been  submitted  to  the 
Chamber of Deputies of the Parliament of the Czech Republic. The Bill shall enter into 
effect on the first day of the second calendar month following the publication of the Bill 
in the Collection of Laws. The Bill aims to transpose Directive (EU) 2019/1937 of the 
European Parliament and of the Council of 23 October 2019 on the protection of persons 
who report breaches of Union law. 

The Bill is available here. 

On 30 November 2022, the government introduced the Bill to the Chamber of Deputies. 

The legislation (and the protection) applies to reports of possible wrongdoing that has 
the  elements  of  a  criminal  offence,  which  breaches  the  Bill  or  EU  law/regulations  in 
specified  areas.  To  be  a  whistleblower  within  the  meaning  of  the  Bill,  a  person  must 
have  a  specific  (work)  relationship  with  the  person  (company)  to  whom  the  report 
relates.  

Such persons are protected from retaliation when they submit a report in the manner 
set out by the Bill. Other persons are also protected from retaliation. 

The Bill contains exceptions to the breach of confidentiality when making a report. 

The  Bill  also  requires  certain  entities  to  establish  an  internal  reporting  system.  This 
obligation  is  regulated  differently  for  different  sectors.  For  the  private  sector,  the 
obligation  generally  applies  to  employers  who  have  at  least  50  employees  as  of  01 
January in the relevant year. 

The  internal  reporting  system  must  allow  the  notifier  to  submit  the  notification  both 
orally  and  in  writing  and,  on  request,  in  person.  The  entities  do  not  have  to  accept 
anonymous reports. They must designate a specific person(s) to receive and review the 
reports. 

An internal system may only be shared with another body (person) that employs up to 
249 employees. The Bill contains time limits for notification or receipt of the report (7 
days); assessment of the report (30 days, which may be extended twice). 

The Bill requires the State to establish an external reporting system that allows for oral, 
written, and, upon request, in-person reports. This reporting system is administered by 
the Ministry of Justice and has already been established. So-called designated staff have 
been  appointed  to  review  the  reports.  In  the  event  of  suspicion  of  a  violation,  the 
designated employee shall inform the competent authorities that deal with the specific 
violation. 

The Bill also provides for the possibility of publishing information on wrongdoing. It also 
regulates the obligations to register the reports, regulates control compliance with the 
Bill and sanctions for non-compliance.  

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Flash Report 12/2022 on Labour Law 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The CJEU ruled that: 

“Article 5(3) of Directive 2008/104 of the European Parliament and of the Council 
of  19 November  2008  on  temporary  agency  work  must  be  interpreted  as 
meaning that that provision, by its reference to the concept of ‘overall protection 
of  temporary  agency  workers’,  does  not  require  any  account  to  be  taken  of  a 
level of protection specific to temporary agency workers that is greater than that 
laid down for workers in general by provisions on basic working and employment 
conditions  under  national  and  EU  law.  However,  where  the  social  partners,  by 
means of a collective agreement, authorise differences in treatment with regard 
to  basic  working  and  employment  conditions  to  the  detriment  of  temporary 
agency workers, that collective agreement must, in order to respect the overall 
protection of the temporary agency workers concerned, afford them advantages 
in  terms  of  basic  working  and  employment  conditions  which  are  such  as  to 
compensate for the difference in treatment they suffer.” 

The CJEU further ruled that: 

“Article 5(3)  of  Directive  2008/104  must  be  interpreted  as  meaning  that 
compliance  with  the  obligation  to  respect  the  overall  protection  of  temporary 
agency workers must be assessed, in concrete terms, by comparing, for a given 
job, the basic working and employment conditions applicable to workers recruited 
directly  by  the  user  undertaking  with  those  applicable  to  temporary  agency 
workers,  in  order  to  be  able  to  determine  whether  the  countervailing  benefits 
afforded in  respect  of those basic  conditions  can counterbalance the  effects  of 
the difference in treatment suffered.” 

As  to  the  working  conditions  of  temporary  agency  employees  compared  with  other 
employees:  

According  to  Section  309  (5)  of  the  Labour  Code,  the  employment  agency  and  user 
undertaking  are  required  to  ensure  that  the  working  and  wage  conditions  of  a 
temporarily  assigned  employee  are  not  less  favourable  than  those  of  a  comparable 
permanent employee. If the working or wage conditions of a temporary worker are less 
favourable  during  the  period  of  performance  of  work  for  the  user  undertaking,  the 
temporary  work  agency  is  required  to  ensure  equal  treatment  at  the  request  of  the 
temporary  agency  worker  or,  if  the  agency  learns  of  this  otherwise,  even  without  a 
request; a temporarily assigned employee shall have the right to seek redress from the 
temporary work agency. 

The Labour Code does not contain any further specifications of the term ‘working and 
wage conditions’ and uncertainty over the exact content of this term persists. 

To  unify  the  control  procedures  for  comparable  working  and  wage  conditions  of 
temporary agency workers, the General Inspector of the State Labour Inspection Office 
issued a ‘Methodical Instruction No. 2/2016’ (hereinafter referred to as the ‘Methodical 
Instruction’ or ‘Instruction’). This Methodical Instruction sets out the principles for the 
assessment  of  the  comparable  working  and  salary  conditions.  The  Instruction  is  not 
binding on courts, however, it is binding on Labour inspection offices when performing 
checks. The Methodical Instruction contains a more detailed definition of working and 

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wage  conditions.  According  to  the  Instruction,  working  conditions  refers  to  the 
conditions  set  out  in  labour  law  regulations  in  case  such  working  conditions  are  tax 
deductible expense. According to the Methodical Instruction, wage conditions refers to 
remuneration  directly  related  to  the  performance  of  work.  The  relationship  between 
remuneration and the performance of work is decisive. Employers (more or less) respect 
this  Methodical  Instruction  as  it  only  provides  guidelines  on  comparable  working  and 
wage conditions. 

Despite the Methodical Instruction, the Supreme Administrative Court ruled (on 29 May 
2020  in  File  No.  2  Ads  335/2018  )  that  the  unequal  treatment  of  temporary  agency 
workers compared to the user undertaking’s permanent employees is permissible—even 
if  they  perform  work  in  the  same  position—if  economically  justifiable  and  generally 
acceptable  reasons  for  such  unequal  treatment  exist  for  differentiated  wages  for 
different categories of workers for their employer (user undertaking). Such reasons may 
include  experience,  performance,  reliability,  degree  of  connection  with  and  loyalty  to 
the  user  undertaking,  as  well  as  capacity  to  deal  with  non-standard  situations.  The 
Supreme Administrative Court also expressed opinion that temporary agency workers 
who frequently rotate (every few months) may generally be paid lower wages compared 
to the user undertaking’s permanent employees, even though they perform work in the 
same position, because permanent employees provide the user undertaking with more 
benefits and pose a lower risk.  

It seems that the Supreme Administrative Court ruling is not in line with the above CJEU 
ruling and Article 5 (3) of Directive 2008/104, as it does not mention the necessity to 
afford  temporary  agency  employees  any  advantages  in  terms  of  basic  work  and 
employment  conditions  as  compensation  for  the  difference  in  treatment  and  the  less 
favourable working and wage conditions to ensure the overall protection of working and 
employment conditions of temporary workers. 

It seems that the Czech Republic has not integrated the definition of comparable working 
and wage conditions into law and the Methodological Instruction is not sufficient. A new 
amendment on temporary agency work is currently being discussed by the Ministry of 
Labour. One of the reasons is case C-232-20, Daimler AG, Mercedes-Benz Werk Berlin 
because Czech legislation is not in line with this ruling. Comparable working and wage 
conditions are not part of the amendment. 

4 

Other Relevant Information 

Nothing to report. 

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Denmark 

Summary  

A decision of the Danish Employees’ Guarantee Institution deals with the classification 
of (false) independent contractors and employees. 

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1  Employee status 

Decision by the Danish Employees’ Guarantee Institution  

In  Denmark,  employees  are  covered  by  the  Employees’  Guarantee  Institution 
(Lønmodtagernes  Garantifond),  which  guarantees  claims  for  unpaid  remuneration  in 
case of employer insolvency. A decision by the Institution deals with the classification 
of (false) independent contractors and employees.  

A private care company had a contract for the delivery of care services on behalf of a 
Danish  municipality.  The  private  care  company  contracted  social  and  health  care 
assistants  as  independent  consultants.  The  assistants  were  registered  with  their  own 
company registration number and were only paid for the ‘active’ working hours spent 
with the patient. This sometimes resulted in workdays of a total of more than 12 hours. 
Their remuneration did not include pension or holiday pay. In the planning of work, the 
assistants  were  assigned  to  shifts  the  same  way  ordinary  employees  of  the  care 
company were.  

The  private  care  company  went  bankrupt,  and  FH  (the  Danish  Trade  Union 
Confederation) brought a claim before the Danish Employees’ Guarantee Institution (LG) 
for compensation for the loss of wages on behalf of the assistants, claiming that they 
had  in  fact  been  employees,  and  not  independent  contractors.  LG  agreed  that  the 
assistants had indeed been employees and the two employees were thus awarded DKK 
323 000 (EUR 43 428) in total for outstanding pay, pension and holiday pay.  

Directive 2008/94/EC on the protection of employees in the event of insolvency of their 
employer  applies  to  employees’  claims  arising from  contracts  of  employment  or  from 
employment  relationships.  Member  States  are  required  to  ensure  that  employees’ 
claims for unpaid remuneration are covered by the national guarantee institution. The 
definition of who is considered an employee is left for the national law, cf. Article 2(2).  

The  CJEU  has  consistently  held  that  the  Directive  shall  apply  to  ‘all  categories  of 
employees’ defined as such by the national law of the Member State, e.g. in CJEU C-
334/92, Wagner Miret.   

The LG’s ruling is in line with the EU law acquis. It demonstrates that the personal scope 
does  not  depend  on  the  parties’  own  formal  definition  of  the  relationship,  such  as 
registering a company registration number. The classification is subject to an intensive 
review  by  the  Guarantee  Institution,  which  may  include  the  composition  of  pay, 
instruction, responsibility for the quality of work performed, etc.  

The decision of the Employees’ Guarantee Institution is in line with other recent national 
rulings  on  the  classification  of  employees  in  other  legal  areas.  A  recent  ruling  in  the 
context  of  tax  law,  namely  a  decision  by  the  National  Tax  Board  (Skatterådet)  of  25 
January 2022, found that a WOLT food delivery driver was to be considered an employee 
for tax purposes, and that the food delivery company WOLT was required to withhold 

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taxes  on  behalf  of  that  employee.  A  Supreme  Court  ruling  of  8  December  2022 
reconfirmed  that  professional  drivers  were  to  be  considered  employees  for  taxation 
purposes.  

These  rulings/  decisions  demonstrate  that  courts  and  administrative  boards  will  set 
aside the parties’ own formal description of their relationship in the face of labour and 
employment  law  and  carry  out  an  in-depth  evaluation  of  the  characteristics  of  the 
relationship  between  the  contractor/employee  and  the  company.  The  assessment  of 
these recent  rulings in taxation law and  the protection  of employee claims in case  of 
employer insolvency specifically focus on assessing the facts of the relationship between 
the  contracting  parties,  and  less  on  the  formalities  of  how  remuneration  is  paid,  the 
individual components of the contract and whether or not the contractor has a registered 
company number.  

See  here  for  information  provided  by  FH  (the  Danish  Trade  Union  Confederation) 
concerning the decision of the Employees’ Guarantee Institution, 14 September 2022. 

See here for the decision (binding assessment) of the National Tax Board, 25 January 
2022. 

See here for the Supreme Court ruling, BS-37342/2021-HJR, 08 December 2022. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The ruling clarifies the interpretation of Directive 2008/104, Article 5(3) with reference 
to collective agreements that can derogate from the principle of equal treatment (Article 
5(1)), while respecting ‘the overall protection of temporary agency workers’. The case 
concerned  a  German  collective  agreement  that  provided  for  lower  pay  for  temporary 
agency workers than for staff members directly recruited by the user undertaking.  

In light of the Directive’s (dual) purposes, the CJEU clarified that the overall protection 
of temporary agency workers  in collective agreements based on Article 5(3)  are only 
respected  if  those  workers  are  at  the  same  time  given  advantages  that  aim  to 
compensate the effects of the difference in treatment.  

Those advantages must cover the working and employment conditions defined in Article 
3(1)(f),  i.e.  working  time,  overtime,  breaks,  pay,  etc.  A  concrete  assessment  hereof 
must be carried out, and the CJEU sets down the three steps in such an assessment.  

First, it is necessary to determine the basic working and  employment conditions that 
would  apply  if  the  temporary  agency  worker  had  been  directly  recruited  by  the  user 
undertaking (for the same job).  

Second,  it  is  necessary  to  compare  those  conditions  with  those  resulting  from  the 
applicable collective agreement.  

Third, it must be assessed whether other potential benefits can offset any difference in 
treatment. 

The  CJEU  rejected  that  Member  States  (national legislators)  were  required  to  specify 
which conditions and criteria were to be respected in derogations allowed under Article 
5(3).  

Finally,  the  CJEU  clarified  that  collective  agreements  under  Article  5  (3)  must  be 
amenable  to  effective  judicial  review  to  determine  whether  the  social  partners  have 
complied  with  their  obligation  to  respect  the  overall  protection  of  temporary  agency 
workers.  Whereas  labour  market  parties  are  afforded  a  discretionary  margin  in  the 
negotiation  of  agreements,  the  national  courts  are  required  to  ensure  that  collective 
agreements are consistent with the obligations of Article 5(3) of Directive 2008/104.  

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The ruling provides an important clarification of Directive 2008/104 on several aspects. 
In a Danish context, the ruling contributes with a clarification, namely:  

1)  that derogations can be made subject to a legal review to ascertain whether they 

respect the overall protection of temporary agency workers (para 79); 

2)  how such a legal review must be carried out, namely by comparing the provisions 

to the rights of the user undertaking’s permanent employees (para 50); 

3)  that the comparison must be of the basic working and employment conditions as 
defined  in  Article 3(1)(f) of  the  Directive,  as  these  ensure  ‘general  protection’ 
(paras 38 and 39); 

4)  that  the  requirement  for  respecting  overall  protection  is  that  any  detrimental 
working conditions in one area are offset by advantages in other basic working 
conditions (para 44).  

In  Denmark,  the  derogation  provided  for  in  Article  5(3)  of  the  Directive  has  been 
implemented  in  the  Danish  Temporary  Agency  Worker  Act  (TAW  Act),  section  3(5). 
Section 3(5) reads as follows (the provisions in section 3(1)-(4) of the Danish TAW Act 
implement  the  equal  treatment  principle  as  required  in  Article  3(1-2)  of  the  TAW 
Directive): 

“Subsections  (1)-(4)  do  not  apply  in  the  event  that  the  temporary  work  agency  is 
included in or has joined a collective agreement that has been concluded by the most 
representative social partners in Denmark, and which is valid within the entire Danish 
territory, by which the general protection of temporary agency workers is respected.” 

The derogation is widely used in Denmark. 

Ad 1) – Judicial review 

The provision sets out the formal requirements for a collective agreement to derogate 
from the principle of equal treatment:  1) The TWA must have acceded to a collective 
agreement or be covered by a collective agreement through membership of an employer 
association; 2) the collective agreement in question must have been concluded by the 
most representative social partners in Denmark; and 3) the agreement must apply to 
all of Denmark (geographically).  

These three formal criteria ensure a certain ‘quality’ of the collective agreements that 
may  derogate  from  the  principle  of  equal  treatment  of  TAW.  The  role  of  the  final 
sentence in provision 3(5) ‘by which the general protection of temporary agency workers 
is  respected’  were  very  vaguely  described  in  the  preparatory  works  for  the  TAW  Act. 
The preparatory works could easily be understood as suggesting that the fulfilment of 
the  formal  requirements  would  be  sufficient  to  establish  an  assumption  that  overall 
protection  was  being  respected,  as  a  collective  agreement  (of  this  nature)  always 
respects the workers and is always balanced.  

This  approach  of  the  perceived  balance  and  overall  protection  was  modified  by  the 
Supreme Court. The parties to the case disagreed on whether this last part of section 
3(5) should be considered as being a separate condition for the lawfulness of derogating 
agreements, or whether it was to be considered an automatic consequence of the high 
formal thresholds of derogating agreements – as indicated in the preparatory works. In 
the Supreme Court ruling of 17 December 2019 (U 2020.845 H), the Court found that 
the  content  of  the  agreement  shall  also  be  subject  to  judicial  review.  It  should  be 
possible  to  provide  a  judicial  review  of  whether  a  derogating  agreement  actually 
observes  the  general  protection  of  temporary  agency  workers  provided  for  in  the 
Directive.  

The Supreme Court in its ruling first established that the overall protection of the TAW 
is an individual requirement for the lawfulness of derogating agreements, in particular 

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relying on the wording of the TAW Act section 3(5). Thus, it can be subject to judicial 
review whether a derogating agreement fulfils this requirement.  

The judicial review of whether the conditions in the TAW Act section 3(5) are met are 
by law delegated to the Labour Court, cf. TAW Act section 3(7). The Danish Labour Court 
has competence to determine whether the conditions in section 3(5) for derogation from 
the principle of equal treatment are fulfilled. Similarly, this follows from section 9(1) No. 
9) in the Labour Court Act.  

The  Supreme  Court,  secondly,  found  that  these  legal  bases  establish  an  exclusive 
competence for the Labour Court. The Labour Court has competence to assess whether 
a  derogating  collective  agreement  fulfils  not  only  the  formal  requirements  in  section 
3(5) but also whether it respects the overall protection of temporary workers in Directive 
2008/104/EC.   

In terms of the first outcome of the CJEU ruling, the Supreme Court ruling clarifies—in 
full conformity with the standard procedures for assessment of the contents of collective 
agreements—that derogating agreements can be subject to judicial review, both with 
regard to the agreement’s formal requirements, as well as to the material condition of 
respecting the overall protection of TAWs.  

As for the comparator and the method for comparisons, ad 2)-4): 

The Supreme Court ruling did not, however, give any guidance on how the Labour Court 
should carry out such a review. This is left to the Labour Court to decide. 

The Labour Court has not yet assessed any claims involving an assessment of whether 
derogating agreements live up to ‘the overall protection of temporary agency workers’. 
As  a  consequence,  the  Labour  Court  has  not  provided  guidance  on  what  ‘general 
protection’ means or how it should be assessed.  

On these points, the CJEU ruling provides some guidance for the Danish courts.  

Ad 2) –principle of equal treatment and the level of protection 

The preparatory works to the TAW Act suggest that the concept refers to ‘the EU law 
minimum requirements with regard to the protection of TAW’s salary and employment 
conditions’. In response to Parliamentary Question No. 24, the Minister stated that “it is 
the level of protection of the most representative nationwide collective agreements in 
Denmark that must be compared with the minimum level in the EU.”  

The CJEU ruling clarifies that the elements to be compared are not the minimum rights 
under  EU  law,  but  instead  the  level  of  the  same  (EU-based)  rights  provided  for  in  a 
collective  agreement  or  legislation  for  permanently  employed  persons  with  the  same 
employer, aside from the condition of permanent employment.  

Ad 3) –concept of ‘general protection’  

The CJEU ruling clarifies that the elements to be compared are the categories of rights 
provided under EU law as referred to in Article 3(1)(f). These are considered the basic 
working  and  employment  conditions  that  must  be  respected  for  TAW,  and  these  are 
balanced against the need for flexibility, etc., which is the Directive’s opposing purpose.  

That  is,  the  comparison  need  not  be  on  each  specific  element  of  the  collective 
agreement,  but  on  the  elements  that  are  considered  basic  working  and  employment 
conditions within the framework of the Directive itself.  

Detrimental working conditions should be offset by advantages in other basic working 
and employment conditions. Not simply any advantage is thus considered to offset less 
favourable treatment.  

On  this  point,  the  CJEU  provides  a  specific  clarification  for  the  Danish  context,  which 
slightly aligns with the preparatory works for the provisions. The working conditions to 

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be  reviewed  when  assessing  the  level  of  protection  of  the  TAW  are  the  working 
conditions mentioned at EU level in the TAW Directive.  

Ad 4) – Offsetting detrimental conditions with advantages elsewhere 

The  CJEU  clarifies  that  the  assessment  shall  be  an  overall  assessment  of  the  basic 
working  conditions.  Detrimental  working  conditions  in  one  area  can  be  offset  by 
advantages in another area. The assessment includes a step-by-step comparison of the 
working  conditions  and  a  final  overall  evaluation  whether  the  reduced  rights  and  the 
stronger rights are overall balanced.  

The CJEU thus provides a formula for conducting a judicial review of how to respect the 
general protection of TAWs.  

The Danish Labour Court is familiar with this formula. The Labour Court usually carries 
out intense and in-depth reviews of collective agreements, and the approach adopted 
by CJEU as such does not conflict, but corresponds to the judicial review procedure in 
Denmark. The formula does not in itself deviate substantially from assessments carried 
out by the Labour Court in other areas of Danish labour law, where the Court compares 
the level of protection of two competing collective agreements.  

In this regard, the CJEU’s  ruling confirms that this approach  of the  Labour Court can 
be—and must be—applied when ruling on claims as well, where an assessment must be 
made whether a derogating agreement fulfils the requirement of respecting the overall 
protection of TAWs.  

The CJEU ruling thus clarifies, guides and confirms the Danish acquis in this matter. The 
ruling provides useful guidance for the Labour Court in future case law.  

See here for the Temporary Agency Work Act, L 595 of 12 June 2013. 

See here for preparatory works to the TAW Act, L 209 of 2013. 

See here for the Act on a Labour Court, no.1003 of 24 August 2017. 

See here for the Supreme Court ruling of 17 December 2019. 

4 

Other Relevant Information 

4.1  Annulment of the Directive on Adequate Minimum Wages  

In  December  2022,  a  new  coalition  government  was  formed  in  Denmark.  The  new 
government is made up of three political parties across the centre  of  Danish politics: 
the Social Democrats (the former governing party, which the (old) new Prime Minister 
is  a  member  of),  Venstre  (the  second  largest  party,  a  liberal  party  called  ‘The  Left’, 
which was in government until 2019), and the moderates (a new centre party formed 
by the Prime Minister until 2019 from the Left) – a very centre-oriented government.  

In  the  new  government’s  political  foundation  (regeringsgrundlag),  one  of  the 
agreements is, that the government will seek an annulment by the CJEU of the Directive 
on  Adequate  Minimum  Wages.  Denmark  voted  against  the  Directive,  and  the  social 
partners from both sides have consistently voiced concerns about the new directive. It 
remains to be seen whether an action for annulment is filed before the deadline expires 
in late January 2023.  

See here for the new government’s political foundation. 

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Estonia 

Summary  

New amendments to the Employment Contracts Act provide more flexibility in working 
time.   

_____________________________________________________________________ 

1 

National Legislation 

1.1  Working time 

The Estonian Parliament has adopted amendments to the  Employment Contracts Act, 
which provide more flexibility in labour relationships. 

In the first amendment, the concept of an employee with independent decision-making 
competence was established. To date, an employee with independent decision-making 
competence was only defined in the Sports Act in 2020, but a general definition of an 
employee with independent decision-making competence was lacking. 

According to § 43 of the Employment Contracts Act, an employee who has independent 
decision-making power is free to organise his/her working time according to the nature 
of  the  work,  and  the  employer  and  employee  must  agree  to  it.  Thus,  autonomous 
decision-making does not simply arise on its own, but requires an agreement between 
the  employee  and  the  employer.  Independent  decision-making  in  this  regard  means 
that various restrictions to working time remain inapplicable. Thereby, the rest period 
within the working day and between working days is not defined; nor does the employee 
get overtime. Special rules do not apply when working at night. Since the employee can 
decide  for  him-/herself  when  to  work,  it  also  means  that  it  is  not  possible  for  the 
employee to be subject to these restrictions. 

Since autonomous decision-making requires an agreement between the employee and 
the employer, formal requirements that must be followed have also been set out in the 
agreement. 

 

 

the agreement must be made in writing; 

the agreement may be concluded with an employee with independent decision-
making power whose salary in any one month is at least equal to the average 
gross  monthly  wage  in  Estonia  in  the  quarter  preceding  the  agreement  in 
accordance with data published by Statistics Estonia; 

 

the agreement must not adversely affect the employee’s health and safety; 

  an accounting period of one month shall apply to the calculation of the working 

time of an employee with independent decision-making powers; 

 

 

the employee and employer may terminate the agreement at any time by giving 
14 calendar days' notice. 

the agreement may only be concluded with an adult employee (see Employment 
Contracts Act (töölepingu seadus). 

The second amendment concerns flexible on-call working time for employees who are 
employed in the ICT sector.  

The  general  rule  for  on–call  working  time  according  to  §  48  of  the  ECA  is  that  if  an 
employee and employer have agreed that the employee is available to the employer for 
the performance of duties outside of working hours (on-call time), remuneration which 
is not less than one-tenth of the agreed wages must be paid to the employee. In case 
of  an  agreement  on  the  application  of  on-call  time  which  does  not  guarantee  the 
employee the possibility of using daily and weekly rest periods is void. 

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The following amendments apply to ICT workers: 

By agreement of the parties, the restriction of the division between working time and 
rest  periods  is  not  applied  to  a  full-time  employee  whose  duties  are  to  ensure  the 
continuous functioning of ICT services and infrastructure as well as information security 
where: 

1)  The agreement is made in a form reproducible in writing;  

2)  the employee can perform duties that require a response during on-call time by 

using means of ICT without having to travel to their place of work; 

3)  the  parties  have  agreed  on  a  reasonable  response  time  during  which  the 

employee is required to start the performance of duties; 

4)  the duration of on-call time per calendar month does not exceed 130 hours; 

5)  the  employee  is  guaranteed  two  weekends  with  no  work  or  on-call  time  per 

calendar month; 

6)  the  agreement  does  not  harm 

the  employee’s  health  or  safety. 
The employee and the employer may cancel the specific agreement on on-call 
work at any given time by giving 30 calendar days’ advance notice. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement  

The Court’s  ruling only has modest implications on the current labour law and labour 
legislation in Estonia. 

In  Estonia,  there  are  no  collective  agreements  in  Estonia  that  provide  for  special 
measures to expand the rights of temporary workers. 

The working conditions of temporary employees are regulated in the following provisions 
of the Employment Contracts Act: 

§ 6 (5) of the ECA provides for a general clause according to which an agreement on 
temporary work is concluded in writing. According to ECA, if an employer and employee 
agree that the employee shall perform work on a temporary basis for a third party (user 
undertaking) on the instructions and supervision (of the temporary work agency), the 
employer must, in addition, notify the employee that the duties are performed by way 
of temporary agency work in the user undertaking. 

According to the Labour Market Services and Benefits Act, an employer cannot prohibit 
a  temporary  employee  from  concluding  an  employment  contract  with  the  user 
undertaking. 

Separate provisions in the ECA cover the conclusion of fixed-term employment contracts 
with temporary agency workers. According to ECA § 9 (1), if duties are performed by 
way  of  temporary  agency  work,  an  employment  contract  may  be  entered  into  for  a 
specified term, also if it is justified by the temporary characteristics of the work in the 
user undertaking. 

If, in general, there are restrictions on fixed-term contracts, which do not allow a fixed-
term employment contract to be concluded more than twice consecutively or to extend 
a fixed-term employment contract no more than once within five years. In the case of 

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temporary workers, it is related to the activities of the user undertaking. According to 
ECA  §  10  (2),  if  the  duties  are  performed  by  way  of  temporary  agency  work,  the 
restriction  to  consecutive  conclusion  or  extension  of  an  employment  contract  for  a 
specified term is applied to every user undertaking separately. 

The Equal Treatment Act provides for equal treatment for temporary agency workers. 
According to § 11 of Equal Treatment Act, the following applies:  

“(2) Employees who perform duties by way of temporary agency work shall not 
be  subjected  to  less  favourable  conditions  of  occupational  health  and  safety, 
working  and  rest  time  and  remuneration  for  work  than  those  applied  to 
comparable employees of the user undertaking. Employees who perform duties 
by  way  of  temporary  agency  work  are  entitled  to  use,  during  the  period  of 
performing  duties,  the  benefits  of  the  user  undertaking,  the  first  meal, 
transportation  and  childcare  services,  on  the  same  conditions  as  comparable 
employees of the user undertaking”. 

There is also a notion of a comparable employee. According to the Equal Treatment Act 
§ 11: 

(3) “‘Comparable employee’ means an employee working for the same employer, 
who  is  engaged  in  the  same  or  a  similar  work,  due  regard  being  given  to 
qualification and skills of the employee. Where there is no comparable employee 
employed by the same employer, the comparison shall be made by reference to 
the applicable collective agreement. Where there is no collective agreement, an 
employee  engaged  in  the  same  or  similar  work  in  the  same  region  shall  be 
deemed a comparable employee”. 

There  are  no  specific  rules  on  collective  agreements  and  limitations  for  collective 
agreements concluded for temporary agency workers. 

As  neither  specific  collective  agreements  exist  nor  is  a  general  principle  of  equal 
treatment  of  temporary  agency  workers  guaranteed,  the  implications  of  the  CJEU’s 
decision are modest. 

4 

Other Relevant Information 

Nothing to report. 

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Finland 

Summary  

A draft amendment to the Seasonal Work Decree to clarify and improve berry pickers’ 
status has been proposed by the Ministry of Economic Affairs and Employment. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Seasonal work 

The  Act  on  the  Conditions  of  Entry  and  Residence  of  Third-Country  Nationals  for 
Seasonal  Work  (Laki  kolmansien  maiden  kansalaisten  maahantulon  ja  oleskelun 
edellytyksistä  kausityöntekijöinä  työskentelyä  varten,  907/2017)  does  not  regulate 
foreign nationals engaged in agricultural work. The Act on the Legal Status of Foreigners 
Picking  Agricultural  Products  (Laki 
luonnontuotteita  keräävien  ulkomaalaisten 
oikeudellisesta asemasta, 487/2021) applies to foreign nationals who pick agricultural 
products.  The  purpose  of  the  Act,  which  entered  into  force  on  14  June  2021,  was  to 
improve  the  position  of  pickers  and  to  lay  down  statutory  obligations  for  berry 
companies. The Act does not, however, apply if agricultural products are picked under 
an employment relationship. 

The Ministry of Economic Affairs and Employment has been preparing an amendment to 
the  Seasonal Work Decree  (Valtioneuvoston  asetus  maatalouden  ja  matkailun  alaan 
kuuluvista  kausiluonteista  toimintaa  sisältävistä  toimialoista,  966/2017)  that  aims  to 
clarify and improve berry pickers’ status. The purpose would be that in the future, entry 
into the country would require an employment relationship between the picker and the 
company.  The  amendment  under  preparation  aims  to  bring  berry  pickers  under  the 
aegis of the Act on the Conditions of Entry and Residence of Third-Country Nationals for 
Seasonal Work and under the aegis of labour legislation. The draft amendment to the 
Decree has been submitted for comments. Comments can be made until 02 February 
2023. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The  labour  legislation  applicable  to  employment  relationships  generally  also  governs 
temporary  agency  work  in  a  similar  way  as  work  performed  in  other  types  of 
employment  relationships.  However,  Section  9,  subsection  1  of  Chapter  2  in  the 
Employment Contracts Act (Työsopimuslaki, 55/2001) contains a particular provision on 
determining  the  applicable  collective  agreement.  This  subsection  provides  that  the 
employer who has hired out an employee to work for another employer is neither bound 
by  a  collective  agreement  as  referred  to  in  Section  7,  subsection  3,  nor  required  to 
observe a generally applicable collective agreement in its employment relationships; the 
provisions of the collective agreement referred to in Section 7, subsection 3 to which 
the user undertaking is bound, or a generally applicable collective agreement shall be 
applied to the employment relationship of the temporary agency worker. The collective 
agreement referred to in Section 7, subsection 2, is the agreement which an employer 

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is  required  to  conclude  under  the  Collective  Agreements  Act  (Työehtosopimuslaki, 
436/1946). 

Thus, according to the Employment Contracts Act, the minimum terms of employment 
for a temporary agency worker are determined according to the collective agreement of 
the  temporary  work  agency  or,  if  such  a  collective  agreement  does  not  exist,  the 
collective  agreement  binding  the  user  undertaking.  Accordingly,  if  different  collective 
agreements  are  applied  to  temporary  agency  workers  and  the  user  undertaking’s 
employees, the terms of employment of these groups of workers may differ. It should 
be  noted  that  according  to  Section  2,  subsection  1  of  Chapter  2  in  the  Employment 
Contracts Act, an employer must treat all employees equally, unless deviating from this 
is justified in view of the duties and position of the employees. 

4 

Other Relevant Information 

4.1  Transition security scheme 

The  transition  security  scheme  is  a  scheme  that  applies  in  cases  of  redundancy  and 
refers to measures that aim to support employees who lose their job for financial and 
production-related reasons. Both employers and labour authorities are involved in the 
implementation  of  the  Finnish  transition  security  scheme.  The  scheme  seeks  to 
accelerate and facilitate re-employment. An evaluation of the transition security scheme 
has been carried out. According to the report (Publications of the Ministry of Economic 
Affairs and Employment 2022:62), the model generally works well.  

The  evaluation  focussed  on  the  effects  of  the  employer’s  extended  obligations 
introduced in 2017. Based on qualitative observations, the employer’s obligations have 
an  impact  on  re-employment,  but  the  impact  could  not  be  verified  based  on  register 
data.  Redundant  workers  covered  by  the  extended  obligation  had  been  offered  more 
services than others, but not all had received them. Those who used the services felt 
that they had been useful for their re-employment or job search.  

According to the report, the Employment and  Economic Development Office’s models 
and  processes  for  the  transition  security  scheme  are  poorly  integrated  into  the 
employers’ transition management processes. The report suggests that the authorities 
implementing the model should be provided with a statutory opportunity to discuss the 
use  of  employer  training  obligation  and  to  exchange  information  with  employers  on 
available service providers. Information on good practices and implementation models 
should  be  systematically  provided.  A  coordination  structure,  such  as  the  transition 
security  development  project,  provides  an  important  means  of  disseminating  good 
practice. 

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Flash Report 12/2022 on Labour Law 

France 

Summary  

The Court of  Cassation  has overturned its previous case law  on the qualification of 
commuting time, and has clarified its previous case law on day package agreements. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Unemployment insurance 

A Law of 21 December 2022 (Law No. 2022-1598 on emergency measures relating to 
the functioning of the labour market aiming for full employment) significantly modifies 
French unemployment insurance. Most importantly, it allows for variation of the duration 
of compensation depending on the situation in the labour market (see Article L. 5422-
2-2 of the French Labour Code). If the unemployment rate exceeds 9 per cent, rules on 
compensation remain unchanged. By contrast, if the rate of unemployment is under 9 
per cent or has not increased by more than 0.8 per cent over a trimester, the duration 
of  compensation  will  be  decreased  by  25  per  cent  for  each  job  seeker  entitled  to 
compensation  (an  implementing  decree  shall  set  the  date  of  entry  into  force  of  the 
provisions of the Law).  

The  Law  also  stipulates  that  between  01  November  2022  and  31  December  2023, 
unemployment insurance rules can be determined by decree without the need for prior 
negotiation with the social partners. This principle derogates from the provisions of the 
French Labour Code (see Article L. 5111-2 of the French Labour Code).  

Moreover, it provides for the exclusion of the job seeker's right to unemployment benefit 
in  case  of  two  rejections  of  permanent  job  offers  following  a  fixed-term  contract  or 
temporary contract over the last 12 months for the same or similar job. 

The Law creates a presumption of resignation for employees who voluntarily abandon 
their job and do not return to work after having been given notice to justify their absence 
and  to  return  within  a  time  limit  set  by  the  employer  (see  Article  L.  1237-1-1  of  the 
French  Labour  Code).  Yet,  employees  will  be  able  to  contest  the  termination  of  their 
employment contract before the Employment Tribunal, which shall rule on the nature of 
the  termination  and its  consequences,  i.e.  the  validity  of  the  resignation  or  dismissal 
without real and serious cause.   

Furthermore, the Law aims to exclude workers from unemployment benefits who have 
refused two permanent employment offers at the end of a fixed-term contract over the 
last 12 months for an identical or similar job (same remuneration, working hours, place 
of work, classification) and in accordance with their job search (see Article L. 5422-1-I 
of the French Labour Code). In such a case, the employer will be required to inform the 
job  centre  (Pôle  Emploi)  of  the  employee’s  rejection  (see  Article  L.  1243-11-1  of  the 
French Labour Code).  

1.2  Disabled workers  

A Decree of 13 December 2022 (Decree No. 2022-1561 on the career path and rights 
of  disabled  workers  admitted  to  establishments  and  services  providing  assistance 
through work) sets out the conditions under which disabled workers can be directed to 
an Etablissement et service d'aide par le travail (ESAT), a French organisation that helps 
disabled persons return to the labour market.  

It also specifies the conditions for implementing a dual activity in ordinary and sheltered 
environments, the rights such workers are entitled to in the context of the reinforced 
employment  pathway  for  workers  entering  the  ordinary  labour  market,  the  new 

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Flash Report 12/2022 on Labour Law 

individual and collective social rights such workers are entitled to in the sheltered labour 
market and the methods of the regional health agencies in charge of monitor the plan’s 
measures.  

Finally, the Decree reinforces and specifies the various individual and collective social 
rights of disabled workers in ESATs, with reference to the public social order applicable 
to all workers, regardless of their status. 

2 

Court Rulings 

2.1  Working time 

Social Division of the Court of Cassation, No. 20-21.924, 23 November 2022  

In  the  present  case,  a  sales  representative  was  in  charge  of  a  large  business  area, 
covering  seven  departments.  He  travelled  to  the  company’s  various  customers  in  a 
company  car.  The  car  was  equipped  with  a  hands-free  kit,  and  the  employee  made 
appointments, and talked to customers and colleagues while driving.  

On 15 January 2015, the employee brought an action before the Employment Tribunal 
claiming judicial termination of his employment contract. On 19 October 2015, he was 
dismissed. 

Article L. 3121-1 of the French Labour Code defines actual working time as  

"the  time  during  which  the  employee  is  at  the  disposal  of  the  employer  and 
complies with his or her instructions without being able to freely go about his or 
her personal business".  

According to Article L. 3121-4 of the French Labour Code, the commute to the place of 
performance  of  the  employment  contract  is  not  actual  working  time.  However,  if  the 
commute exceeds the usual travel time between home and the usual workplace, it must 
be  compensated  either  in  the  form  of  rest  or  monetary  terms.  Such  compensation  is 
determined  by  a  company  or  establishment  agreement  or,  failing  that,  by  a  branch 
agreement. In the absence of an agreement, the employer shall define the amount of 
compensation unilaterally, after consulting the Social and Economic Committee (CSE) 
(see Articles L. 3121-7 and L. 3121-8 of the French Labour Code). 

This  issue  of  exceeding  the  usual  time  for  commuting  is  of  particular  relevance  for 
commuting workers who work at customers’ premises. 

The Court of Cassation (see Social Division of the Court of  Cassation, No. 16-20.634, 
30  May  2018)  has  applied  the  following  principles  laid  down  in  a  2018  judgment  for 
commuting workers: 

  The time spent by commuting workers between several work sites on the same 

working day is paid as actual working time. 

  However, the daily travel time between home and the first and last client sites is 
not paid as actual working time but must only be compensated when it exceeds 
the employee’s usual travel time. 

The Court of Appeal ordered the employer to pay the claimant overtime. Indeed, as the 
employee  had  made  appointments  and  had  called  various  work-related  persons 
(customers, sales managers, assistants and technicians), it was no longer possible to 
speak strictly of commuting time within the meaning of Article L. 3121-4 of the French 
Labour Code. It was actual working time, which had to be paid as such. 

Relying  on  the  case  law  of  the  CJEU  in  its  decision  of  23  November,  the  Court  of 
Cassation confirmed the decision of the Court of Appeal.  

Published in a press release, the Court of  Cassation overturned its past case law and 
put an end to the contradiction between French and European case law. 

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Until this decision, the Court of Cassation considered the time required for a commuting 
employee to travel to his/her first client and to return home at the end of the day from 
a client did not constitute actual working time.  

Broadly speaking, the Court of Cassation justified its position on two points: 

  On  the  one  hand,  the  Directive  leaves  the  legislator  of  the  Member  States  a 

certain margin of interpretation; 

  On the other hand, the debate was not really about the notion of actual working 
time, but rather about the method of remuneration of travel time in the case of 
commuting workers. 

Whereas in a 2015 ruling, the CJEU qualified the commuting time employees without a 
fixed or usual workplace spend  on their daily  commutes between their home and the 
sites  of  their  first  and  last  client  (see  CJEU,  case  C-266/14,  10  September  2015)  as 
‘working  time’  in  the  light  of  Directive  2003/88/EC  of  04  November  2003  on  the 
organisation of working time. 

However, this was the case before the CJEU ruling case C-344/19 on 09 March 2021, 
which  held  that  the  concepts  of  ‘actual  working  time’  and  ‘rest  period’  could  not  be 
compromised. In this regard, Member States have no choice but to apply the definitions 
set out in the 2003 Working Time Directive. 

The Court of Cassation therefore considered that the French exception resulting from its 
2018 ruling could no longer be justified. 

Consequently, it now considers that this time can be considered actual working time if 
the employee is at the employer’s disposal during the commute and required to comply 
with his/her instructions without being able to go about his/her personal business.  

Hereby, the Court of Cassation has taken an important step towards compliance with 
European law and case law. Yet  the French legislator, despite several attempts of the 
Court of Cassation to push forward a change  in the legislation, has still not  amended 
the provisions of the French Labour Code to comply with European law.  

2.2  Day package agreement 

Social Division of the Court of Cassation, No. 20-20.572, 14 December 2022 

In the present case, a salesperson was promoted to shop manager on 06 October 2003. 
By  an  amendment  of  18  December  2006  to  his  employment  contract,  the  employee 
signed  a  day  package  agreement.  The  employment  relationship  was  covered  by  the 
collective bargaining agreement of non-food retail businesses of 05 September 2003.  

On 15 December 2017, the employee brought an action before the Employment Tribunal 
demanding,  in  particular,  the  unenforceability  of  the  day  package  agreement,  the 
judicial termination of the employment contract and the payment of various sums. On 
28  May  2019,  the  employee  was  dismissed  for  unfitness  and  impossibility  of 
redeployment.  

According to Article L. 212-15-3 of the French Labour Code which was in force at the 
time, and interpreted in the light of Articles 17(1) and 19 of Directive 2003/88/EC of 
the European Parliament and of the Council of 04 November 2003, and Article 31 of the 
Charter  of Fundamental Rights of the  European Union, that Member States may only 
derogate from the provisions on working time in compliance with the general principles 
of the protection of  workers’  safety and health. Any agreement on a fixed number  of 
days must be provided for by a collective agreement, the stipulations of which ensure 
that reasonable working hours and daily and weekly rest periods are respected. 

The Court of Appeal dismissed the employee’s arguments and did not consider the day 
package  agreement  as  null  and  void.  In  fact,  the  Court  of  Appeal  noted  that  the 
agreement of 05 September 2003, in its Article 3.2.1., provided for a number of days 

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worked per calendar year or period of 12 consecutive months, the right to rest from the 
first following quarter in the event that the ceiling was exceeded, as well as the right to 
full  annual  leave,  weekly  rest  and  daily  rest,  and  that  contrary  to  the  employee’s 
assertions,  it  included limits  and  guarantees,  i.e.  control  over  the  number  of  days  or 
half-days worked, or of rest/leave time.  

In its decision of 14 December 2022, the Court of Cassation overruled the decision of 
the Court of Appeal. The Court of Cassation deemed that Article 3.2.1. of the agreement 
of 05 September 2003, attached to the national collective agreement for non-food retail 
businesses of 09 May 2012, did not establish an effective and regular follow-up enabling 
the  employer  to  remedy  in  good  time  a  workload  that  may  be  incompatible  with  a 
reasonable duration. Even if the amplitude and workload remain reasonable and a good 
distribution  is  ensured  in  terms  of  the  respective  person’s  working  time,  it  could  be 
deduced that the fixed-term work agreement was null and void. 

In fact, Article 3.2.1. of the agreement of 05 September 2003 merely provided that:  

 

 

 

 

the number of days worked or rest days taken had to be drawn up monthly by 
the person concerned,  

that professional and managerial staff had to submit a document summarising 
the  number  of  days  already  worked,  the  number  of  days  or  half-days  of  rest 
taken and those still to be taken to the employer once a month, who validated 
it, i.e. the organisation of working time was monitored, 

the application of this agreement and the impact of the workload on their activity 
for each day had to be reviewed,  

the working days had be monitored either by means of an automated system or 
a  self-declared  document;  the  document  signed  by  the  employee  and  the 
employer had to be kept by the latter for three years and made available to the 
labour administration upon request.   

Hereby, the Court of Cassation reinforced its case law on day package agreements in 
line with the CJEU’s case law (see CJEU, case C-55-18, 14 May 2019). Thus, the Court 
of  Cassation  affirmed  the  right  to  rest  and  to  health  as  a  constitutional  requirement 
which cannot be set aside for workers under day package agreements.  

Yet, the European Committee of Social Rights (see ECSR, 19 May 2021, No. 149/2017) 
has recently been even stricter about the validity of day package agreements.  

It  will  be  necessary  to  closely  follow  in  the  future  how  both  the  CJEU  and  Court  of 
Cassation position themselves in terms of day package agreements, and whether they 
will go even further for respect of the right to rest and the right to health. After all, the 
present case was ruled on provisions of the French Labour Code that are no longer in 
force today. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

In  its  case  C-311/21,  the  CJEU  interpreted  the  concept  of  “overall  protection  of 
temporary agency workers” regarding collective agreements which authorise differences 
in treatment with regard to basic working and employment conditions.  

Temporary agency work in France is simultaneously characterised by a highly structured 
legal framework and a large number of contracts being concluded and dialogue taking 
place. This makes for relatively strong protection for workers and legitimises the work 
of  temporary  work  agencies.  Temporary  agency  contracts  cannot  be  used  on  a  long-
term basis to fill jobs linked to the company’s regular business. There is a restriction on 

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the  use  of  temporary  workers  (these  are  judicially  supervised  and  there  is  a  list  of 
circumstances under which such contracts can be concluded, such as six months after 
a  redundancy),  how  many  times  an  employer  can  renew  an  employee  on  the  same 
fixed-term contract (it used to be once until the Macron Law was issued, and now two 
fixed-term  contracts  can  be  successively  concluded),  and  the  maximum  duration  (a 
fixed-term contract may not exceed 18 months). 

The general principle is that the employer is in fact the temporary  work agency. It is 
fully responsible for paying and training the temporary employee and for exercising all 
disciplinary powers related to the temporary worker.  

Insofar as the duration of fixed-term contracts is often short, the worker does not, in 
practice, acquire any rights based on duration of service, for example. To compensate 
for the precarity of this status, there is a ‘precarity bonus’ which is a minimum of 10 per 
cent of the temporary worker’s wage, and which must be paid monthly to all FTC and 
TAWs  as  well  as  compensation  for  annual  leave,  which  make  for  a  higher  wage  than 
that of other workers.  

Also,  responsibility  during  the  performance  of  work  (in  particular  for  working  conditions:  working 
hours, night work, weekly breaks, hygiene and safety) lies with the user undertaking. Article L.4154-
2 of the Labour Code, which came into force on 01 May 2008, establishes the obligation to provide 
employees including temporary workers with enhanced safety training and appropriate induction and 
information whenever they are assigned to work stations presenting particular risks to their health or 
safety. It  is up to the employer  to  draw  up  a list  of workplaces  that  present particular risks to the 
health and safety of said employees. 

Article L. 1251-21 of the French Labour Code states: 

“Throughout the duration of the assignment, the user undertaking is responsible 
for the conditions  related to the performance  of the worker’s employment […] 
and  for  the  application  of  provisions  concerning:  working  hours;  night  work; 
weekly rest; health and safety at work; the work of women, children and young 
workers”. 

The user undertaking has the duty to guarantee the same conditions (only the provisions 
mentioned above) for temporary workers as those enjoyed by its employees. 

In  France,  temporary  workers  have  access  to  all  collective  facilities,  in  particular, 
canteens, transport services, restaurant vouchers, etc. on the same terms as workers 
employed directly by the user undertaking. It follows from Articles L. 124-3 6° and L. 
124-4-2, paragraph 1, of the Labour Code that a temporary employee’s remuneration 
is  provided  for  in  Article  L.  140-2  of  the  same  Code.  Since  remuneration  is  to  be 
understood in accordance with the meaning of the latter text as the ordinary basic or 
minimum wage or salary and all other benefits and bonuses paid, directly or indirectly, 
in cash or in kind, by the employer to the worker by reason of the latter’s employment, 
the  luncheon  voucher,  which  constitutes  a  benefit  in  kind  paid  by  the  employer,  is 
included as part of the employee’s remuneration. Therefore, a labour court has ordered 
the temporary employer to pay damages to a temporary employee for non-payment of 
meal vouchers and declared that the ruling applied to the user undertaking, asserting 
that meal vouchers constitute an element of the remuneration which is legally justified 
in its  decision  (see  Social  Chamber  Cour  de  Cassation,  No.  05-42.853,  29  November 
2006). 

Article L. 3221-2 of the French Labour Code establishes the principle of ‘equal pay for 
equal work’ (employees performing the same work should receive the same pay). 

In accordance with Article L. 1251-18 of the Labour Code, equal treatment of temporary 
agency workers and permanent workers at a user undertaking holding the same posts 
is  a  general  principle  that  is  formally  confirmed  by  the  law  and  covers  all  of  the 
employee’s  individual  and  collective  rights.  Failure  to  adhere  to  the  regulations  may 
result in sanctions that vary depending on the offence. Specifically, the law stipulates 
that the assignment contract can be ‘switched’ to a permanent contract with the user 

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enterprise  in  the  event  of  any  non-authorised  use.  The  law  also  makes  provision  for 
criminal sanctions (in the form of fines or imprisonment) for breaches of the legislation. 

In other words, sanctions will apply unless the basic work and employment conditions 
that the temporary worker is entitled to are guaranteed (i.e. the same conditions that 
employees hired directly by the user company for the same position enjoy) 

Collective  bargaining  is  very  strong  in  France,  and  the  regulatory  role  of  the  social 
partners is underpinned by the responsibility that sector-level institutions have in the 
management of social security and welfare. For TAW, these include the Temporary Work 
Training  Insurance  Fund  (Fonds  d’Action  Sociale  du  Travail  Temporaire,  FAF-TT),  the 
Professional  Fund  for  Employment  of  Temporary  Work  (Fonds  Professionnel  pour 
l’Emploi du Travail Temporaire, FPE-TT), the Temporary Work Social Action Fund (Fonds 
d’Action  Sociale  du  Travail  Temporaire,  FAS-TT),  plus  other  welfare  and  pension 
arrangements. The first collective agreement in the sector dates back to 1972 and was 
based on a company agreement at Manpower. Subsequent agreements have made an 
important contribution to the regulation of the sector by developing and supplementing 
the law.  

The  most  recent  collective  agreements  were  the  September  2022  Framework  Agreement  for  the 
employment and qualification of young people This Framework Agreement was concluded between 
the Ministry of Labour, Employment and Integration and the UNML, Prism'emploi, AKTO, the FASTT 
and  the  FPE.TT.  In  France,  the  TAW  sector  agreement  is  often  extended  to  the  90  per  cent  of 
companies  that  are  not  members  of  the  employers’  association  (PRISME).  However,  PRISME 
members are the largest  group (accounting for 90 per cent of the sector’s turnover), so collective 
bargaining coverage is high in terms of number of employees. 

The 2021 Agreement Prism'emploi - Pôle employment agreement was signed between 
Pôle emploi and Prism'emploi. Pôle emploi is the public employment service in France. 
Its role is to compensate jobseekers and professionally support them in their return to 
the labour market. 

The  2019  Framework  Agreement  for  the  recruitment  of  people  with  disabilities  was 
concluded between Prism'emploi, the Ministry of Labour, the State Secretariat in charge 
of disabled people, UNEA, Pôle Emploi, FAF.TT, CHEOPS, FASTT, UNML, OIR, APEC and 
AGEFIPH. 

The most recent national collective agreement on the prevention of discrimination and 
the promotion of equality and diversity in the temporary work sector of 18 November 
2022 (currently being extended) states that:  

“Following  from  the  branch  agreements  of  16  March  2007  for  permanent 
employees  and  6  July  2007  for  temporary  employees,  the  signatory  parties 
reaffirm, in the present agreement, their strong commitment to respecting the 
principles  of  non-discrimination  and  equal  treatment,  whether  in  terms  of 
recruitment, vocational training, assignment, career development or professional 
development. 

Indeed,  the  temporary  work  sector,  which  is  at  the  heart  of  the  recruitment 
process, faces situations of discrimination and requests. 

The temporary work sector cannot accept to be associated with such practices, 
as they are contrary to its ethical commitment and to the actions it carries out 
on real equal opportunities for all, through the fair promotion of the skills of each 
permanent employee and each temporary employee in the professional world. 

The fight against all forms of discrimination and the active promotion of diversity 
therefore pose, more than ever, major challenges for the temporary work sector. 

Moreover, this approach is part of a policy of social responsibility pursued by the 
temporary work sector, which has always worked to provide access to sustainable 
employment for those who are furthest away from employment, over and above 
compliance with legal and regulatory obligations alone. 

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Through  an  agreement  of  19  July  2019,  the  temporary  work  sector  has 
strengthened its commitment specifically to the integration of and securing the 
professional careers of people with disabilities. It has always developed special 
relationships with the players involved in the employment and support of people 
with disabilities. 

More generally, the social responsibility policy pursued by the sector is applied 
on a national scale, since more than 2.4 million temporary employees have been 
assigned to over 16 million assignments in 2020,  owing to the commitment of 
29 000 permanent employees. 

Thus, the signatory parties of this agreement will ensure that it is brought to the 
attention of every player in the sector. 

Within  the  framework  of  this  goal  for  active  involvement  by  the  sector,  the 
objectives of this agreement are, in particular, to 

Prevent and act against discrimination for all; 

Inform client companies; 

Train to apply equal treatment; 

Ensure non-discrimination in recruitment; 

Ensure non-discrimination of employees who have been assigned. 

This  commitment  seems  to  be  in  line  with  the  interpretation  given  by  the  ECJ 
stating that collective agreement must, in order to respect the overall protection 
of the temporary agency workers concerned, afford them advantages in terms of 
basic working and employment conditions, which are such as to compensate for 
the difference in treatment they suffer”  

The  Luxemburg-based  Court  also  provided  a  strong  method  for  comparing  working 
conditions by ruling  

“that  compliance  with  the  obligation  to  respect  the  overall  protection  of 
temporary agency workers must be assessed, in concrete terms, by comparing, 
for  a  given  job,  the  basic  working  and  employment  conditions  applicable  to 
workers  recruited  directly  by  the  user  undertaking  with  those  applicable  to 
temporary  agency  workers,  in  order  to  be  able  to  determine  whether  the 
countervailing  benefits  afforded  in  respect  of  those  basic  conditions  can 
counterbalance the effects of the difference in treatment suffered.”  

It should be noted that the French case explicitly referring to Directive 2008/104/EC is 
rare. In 2019, the Cour de Cassation (Civil Chamber 2, No. 19-40.002, 11 April 2019) 
rejected a request to appeal to the Conseil constitutionnel:   

“by providing, for the accomplishment of each assignment, for the conclusion, on 
the  one  hand,  of  a  contract  of  provision  between  the  temporary  employment 
undertaking  and  the  user  client,  known  as  the  “user  undertaking”,  and  on  the 
other hand, of a contract of employment, known as the  “assignment contract”, 
between  the  temporary  employee  and  his  employer,  the  temporary  work 
undertaking, the provisions under criticism, which transcribe into national law the 
objectives  of  Directive  2008/104/EC  of  the  European  Parliament  and  of  the 
Council  of  19  November  2008  on  temporary  work,  confer  exclusively  on  the 
temporary work undertaking the capacity of employer of the temporary worker; 
that if the user undertaking may be called upon, pursuant to Articles L. 241-5-1 
and L. 412-6 of the Social Security Code, either to bear part of the cost of the 
accident at work or the occupational disease under the risk rating system, or to 
cover, in whole or in part, the temporary employment agency for the amount of 
the increases and indemnities payable by it in the event of inexcusable fault, it 
may  bring  an  action  before  the  general  social  security  courts  or  the  court 
responsible for the rating of insurance against accidents at work, or defend the 

December 2022 

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Flash Report 12/2022 on Labour Law 

action brought against it before these courts; that it cannot therefore be argued 
that the provisions criticised, as interpreted by the Court of Cassation, deprive 
the user undertaking of an effective legal  remedy and thus seriously disregard 
the requirements of Article 16 of the Declaration of the Rights of Man and of the 
Citizen of 26 August 1789; that, as the user company is not placed in the same 
legal  situation  as  the  temporary  employment  company  for  the  performance  of 
the  worker's  mission,  it  cannot  be  argued  either  that  the  contested  provisions 
seriously disregard the requirements of the principle of equality before the law 
and justice that derive from Articles 1, 6 and 16 of the Declaration of 26 August 
1789”. 

4 

Other Relevant Information 

Nothing to report.  

December 2022 

44 

 
 
 
 
Flash Report 12/2022 on Labour Law 

Germany 

Summary  

(I) The Bundestag has passed the Act on the implementation of the Whistleblowing 
Directive 2019/1937.  

(II)  The  Bundestag  has  approved  the  Federal  Government’s  draft  law  which 
implements  the  provisions  of  EU  Directive  2019/2121  on  employee  participation  in 
cross-border transformations, mergers and divisions. 

(III) The Act on the Further Implementation of the Directive (EU) 2019/1158 on work-
life balance has been approved in the Bundesrat.  

(IV) The Federal Labour Court has delivered two important rulings on limitations and 
forfeiture of holiday entitlements. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Whistleblowers 

On  16  December  2022,  the  Bundestag  passed  the  Act  to  improve  protection  of 
whistleblowers and on the implementation of the Directive on the protection of persons 
reporting infringements of Union law. In the next step, the law must now be approved 
by the Bundesrat. It could enter into force in May 2023. 

See here for the draft law and here for the Parliament’s plenary protocol. 

1.2  Cross-border mergers 

On 01 December 2022, the Bundestag approved the Federal Government’s draft law on 
the  implementation  of  the  provisions  of  the  Transformation  Directive  on  employee 
participation  in  cross-border  transformations,  mergers  and  divisions.  The  Act  aims  to 
implement Directive 2019/2121/EU of the European Parliament and of the Council of 27 
November  2019  amending  Directive  2017/1132/EU  as  regards  cross-border 
transformations, mergers and divisions. 

See here for the Parliament’s plenary protocol.  

1.3  Work-life balance 

On  16  December  2022,  the  Act  on  the  Further  Implementation  of  Directive  (EU) 
2019/1158 of the European Parliament and of the Council of 20.06.019 on reconciliation 
of  work  and  private  life  for  parents  and  family  carers  and  repealing  Council  Directive 
2010/18/EU was approved by the Bundesrat. 

2 

Court Rulings 

2.1  Limitation of holiday entitlements 

Federal Labour Court, 9 AZR 266/20, 20 December 2022  

The  Federal  Labour  Court  has  ruled  that  an  employee’s  statutory  entitlement  to  paid 
annual leave is subject to the statutory limitation period (sections 214(1), 194(1) of the 
Civil  Code),  but  that  the  three-year  limitation  period  only  starts  at  the  end  of  the 
calendar  year  in  which  the  employer  informed  the  employee  of  his/her  specific leave 
entitlement as well as the expiry periods and the employee nevertheless did not take 
the leave out of his/her own free will. 

December 2022 

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Flash Report 12/2022 on Labour Law 

In  the  underlying  case,  the  employer  had  not  given  the  employee  the  opportunity  to 
exercise  her  holiday  entitlement  by  fulfilling  the  obligations  to  request  and  notify. 
Therefore,  the  claims  did  not  expire  at  the  end  of  the  calendar  year  (section  7(3) 
sentence 1 of the Federal Holidays Act) or of a permissible carry-over period (section 
7(3) sentence 3 of the Federal Holidays Act), nor could the employer successfully argue 
that  the  leave  not  granted  had  already  become  time-barred  during  the  current 
employment relationship after the expiry of three years. 

2.2  Forfeiture of holiday entitlements for health reasons 

Federal Labour Court, 9 AZR 245/19, 20 December 2022  

The Federal Labour Court has ruled that entitlement to statutory minimum leave from 
a year in which the employee actually worked before he was prevented from taking his 
leave for health reasons only expires after the expiry of a carry-over period of 15 months 
if the employer gave him the opportunity to take leave in due time. This result follows 
from an interpretation of German law in conformity with the Working Time Directive. 

According to the previous case law, the statutory holiday entitlement expired at the end 
of  31  March  of  the  second  year  of  continued  incapacity  for  work.  The  Court  has  now 
further developed this case law by implementing the CJEU’s requirements established 
in the preliminary ruling in cases C-518/20 and C-727/20, 22 September 2022, which 
the Federal Labour Court had requested in its decision of 07 July 2020 (9 AZR 401/19 
(A)). 

According to the Federal Labour Court, holiday entitlement continues to expire at the 
end of the 15-month period if the employee was prevented from taking his/her holiday 
for health reasons from the beginning of the holiday year until 31 March of the second 
calendar year following the holiday year. In this case, it does not matter in the view of 
the Court whether the employer fulfilled its obligations to cooperate, because this could 
not have contributed to the taking of the leave. However, the situation is different if the 
employee actually worked in the holiday year  before becoming fully incapacitated for 
work due to illness. In this case, the limitation of the holiday entitlement presupposes 
that the employer has put the employee in a position to actually take his/her holiday in 
due time before the incapacity for work arose. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The decision is likely to have  considerable implications for German law and collective 
bargaining  practice  in  the  temporary  agency  work  sector.  Already  with  regard  to  the 
Advocate General’s Opinion, the view was expressed in the literature that the deviation 
from  the  principle  of  equal  treatment  in  temporary  agency  work  under  collective 
agreements,  which  is  common  in  Germany,  is  probably  ineffective  (Seiwerth,  Zur 
tariflichen  Abweichung  vom  Grundsatz  der  Gleichbehandlung  von  Leiharbeitnehmern, 
in:  Entscheidungen  zum  Wirtschaftsrecht  (EWiR)  2022,  p.  597).  Irrespective  of  this, 
from  a  legal  point  of  view,  the  relationship  between  state  legislation  and  collective 
bargaining must be readjusted, whereby it should be noted that the latter is protected 
as  a  fundamental  right  and  that  collective  agreements  are  generally  granted  a 
‘guarantee  of  correctness’  (Richtigkeitsgewähr)  which  goes  hand  in  hand  with limited 
judicial control. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

46 

 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Greece 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Codification of labour legislation 

Greek  individual  labour  legislation  was  codified  in  a  single  text  (Presidential  Decree 
80/2022). The codification of collective labour law will also follow. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Greek  legislation  does  not  give  social  partners  the  option  of  upholding  or  concluding 
collective  agreements  which  authorise  differences  in  treatment  with  regard  to  basic 
working and employment conditions to the detriment of temporary agency workers. The 
basic working and employment conditions of temporary agency workers shall be, for the 
duration of their assignment at a user undertaking, at least those that would apply if 
they had been recruited directly by that undertaking to occupy the same job.  

No exemption is provided even where temporary agency workers who have a permanent 
contract of employment with a temporary work agency continue to be paid in between 
assignments. 

Therefore, the above judgment has no impliations for Greece. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

47 

 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Hungary 

Summary  

(I) The Amendment of the Labour Code will come into force on 1 January 2023. 

(II) The Constitutional Court has ruled on the constitutionality of restrictions on 
strikes of teachers. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Amendment of the Labour Code 

The government  has submitted  a Bill to Parliament on the  Amendment of the Labour 
Code  on  2  November  2022,  as  part  of  the  text  on  the  amendment  of  employment-
related laws (Bill No. T/1845). The Bill is available in Hungarian here. The amendment, 
which is available here, was passed on 7 December 2022, and will enter into force on 1 
January 2023. 

2 

Court Rulings 

2.1  Collective action 

Parliament  has  passed  Act  5  of  2022  on  regulatory  issues  relating  to  the  end  of  the 
COVID  state  of  emergency.  This  includes  Article  14,  which  enacts  the  provisions  of 
Government  Decree  No.  36/2022.  It  requires  teachers  to  provide  care  for  children  in 
their  original  groups  (merging  groups  is  prohibited)  between  7  am  and  4-6  pm 
(depending  on  school  level).  This  makes  a  strike  practically  impossible.  In  addition, 
disciplinary measures may be enforced in case of refusal to work (civil disobedience). 

The  Constitutional  Court  passed  a  decision  on  29  November  2022  reiterating  the 
constitutionality of the above-mentioned norms (limitations) on strike law for teachers. 
The  decision  is  available  here.  According  to  the  Court’s  reasoning,  children’s  right  to 
education is a legitimate aim for imposing restrictions on strikes. Since the restriction 
has a legitimate aim, it was considered automatically necessary and proportionate. The 
Constitutional Court therefore did not investigate the necessity and proportionality  of 
the measure. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Article 219 of the Labour Code, which is available here, regulates the equal treatment 
of temporary agency workers: 

  The  basic  working  and  employment  conditions  of  temporary  agency  workers 
shall, for the duration of their assignment, be the same as those available to the 
employees employed by the user undertaking under a permanent employment 
relationship (Article 219.1). 

  The  basic  working  and  employment  conditions  shall,  in  particular,  cover  the 

amount and protection of wages, including other benefits (Article 219.1). 

  Collective agreements may deviate from the relevant provisions of Article 219 to 
the benefit as well as detriment of employees (in peius and in melius derogations 
are also allowed). 

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Flash Report 12/2022 on Labour Law 

The Labour Code does not contain any reference to ‘respect for the overall protection of 
the  temporary  agency  workers  concerned’.  However,  the  judgment  does  not  clearly 
require such a reference. Therefore, it is up to the social partners to respect the overall 
protection  of  the  temporary  agency  workers  concerned,  without  any  direct  legal 
provision requiring it.  

4 

Other Relevant Information 

Nothing to report. 

December 2022 

49 

 
 
 
Flash Report 12/2022 on Labour Law 

Iceland 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1  Dismissal 

Reykjavík District Court, No. 803/2022, 806/2022 and 809/2022, 07 December 2022 

Three rulings were issued in the Reykjavík District Court on 07 December 2022 relating 
to the dismissal of three employees of a trade union in cases No. 803/2022, 806/2022 
and 809/2022. Whilst the dismissals themselves were not deemed illegal, the manner 
of the dismissals and the circumstances surrounding them was considered to have been 
especially detrimental to the employees and they were therefore awarded damages.  

These  judgments  follow  an  interesting  recent  trend  of  courts  scrutinising  dismissals 
more  closely  than  before  in  private  sector  employment  relationships.  Whereas  the 
dismissals themselves may be considered legal as dismissal protection is relatively low 
in  the  Icelandic  private  sector,  the  circumstances  surrounding  dismissals  have  been 
subject to more thorough judicial reviews. It is not yet clear whether the relevant parties 
will appeal to the Court of Appeals. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

It is unlikely that Icelandic legislation on temporary work will be affected by this ruling. 
The major collective agreements in the field in which temporary agency work is used do 
not  differentiate  between  temporary  agency  workers  and  other  workers.  In  addition, 
temporary  agency  workers  are  guaranteed  the  same  minimum  wage  and  other  basic 
working conditions as other workers in the Icelandic labour market, see Article 1 of Act 
No. 55/1980 on working conditions for employees and mandatory insurance of pension 
rights and Article 1 a of Act No. 139/2005 on temporary work agencies.  

4 

Other Relevant Information 

4.1  Collective bargaining 

In  December,  most  trade  unions  of  unskilled  workers,  office  workers  and  tradesmen 
concluded collective agreements. The agreements are to apply from 01 November 2022, 
when the term of the previous agreements  ended, which is a  rare occurrence  on the 
Icelandic  labour  market.  The  collective  agreements  are  to  last  for  14  months,  an 
especially short term compared  to recent collective agreements, and  mainly focus on 
wage increases. The major factor at play was the inflation rate, which, as in most other 
European  countries,  has  been  considerably  higher  than  in  recent  years  at  over  9  per 
cent in December. 

December 2022 

50 

 
 
 
 
 
Flash Report 12/2022 on Labour Law 

Ireland 

Summary  

(I)  Directive  2019/1152/EU  on  transparent  and  predictable  working  conditions  has 
been implemented into national legislation.  

(II) The Labour Court has ruled that on-call/standby time is not working time. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Transparent and predictable working conditions 

Regulations were introduced by the Minister for Enterprise, Trade and Employment, on 
16  December  2022,  for  the  purpose  of  giving  full  effect  to  Parliament  and  Council 
Directive  2019/1152/EU:  European  Union  (Transparent  and  Predictable  Working 
Conditions) Regulations 2022 (S.I. No. 686 of 2022). 

These Regulations amend the Terms of Employment (Information) Act 1994 (the 1994 
Act), which implemented the provisions of Council Directive 91/533/EEC. The 1994 Act 
had been amended by the Employment (Miscellaneous Provisions) Act 2018 so as, inter 
alia, to require employers to provide their employees with a written statement of five 
core pieces of information within five days of commencing employment. This ‘five day’ 
statement has now been expanded to include: 

1.  The place of work or, where there is no fixed or main place of work, a statement 
specifying that the employee is employed at various places or is free to determine 
his or her place of work or to work at various places. 

2.  The title, grade, nature or category of work for which the employee is employed 

or a brief specification or description of the work. 

3.  The date of commencement of the employee’s contract of employment. 

4.  Any terms or conditions relating to hours of work (including overtime). 

5.  Where a probationary period applies, its duration and conditions. 

All other terms of employment required to be given under the 1994 Act must now be 
given  to  the  employee  within  one  month  of  commencing  employment.  This  written 
statement must now also include: 

1.  The training entitlement, if any, to be provided by the employer. 

2.  In the case of temporary agency work, the identity of the user undertaking. 

3.  Where the work pattern is entirely or mostly unpredictable, 

(i) 

(ii) 

(iii) 

(iv) 

the principle that the work schedule is variable, 

the  number  of  guaranteed  paid  hours  and  the  remuneration  for  work 
performed in addition to those guaranteed hours, 

the reference hours and days within which the employee may be required 
to work, and 

the minimum notice period to which the employee is entitled before the 
start of a work assignment. 

4.  The  identity  of  the  social  security  institutions  receiving  the  social  insurance 
contributions attached to the contract of employment and any protection relating 
to social security provided by the employer. 

Additional information is also required where employees have to work outside of Ireland 
and in respect of ‘posted workers’. 

December 2022 

51 

 
 
Flash Report 12/2022 on Labour Law 

Probation periods should not exceed six months, save in exceptional cases; in the public 
sector, however, the period shall not exceed twelve months. 

Parallel employment is addressed by stipulating that an employer shall not prohibit an 
employee from taking up employment with another employer outside of the employee’s 
work  schedule,  unless  there  are  ‘objective  grounds’  for  doing  so  such  as  health  and 
safety, the protection of business confidentiality, avoidance of conflicts of interest, and 
a range of other examples. 

Where an employer is required by law or by a collective agreement to provide training, 
such  training  shall  be  provided  to  the  employee  free  of  cost,  shall  count  as  ‘working 
time’ and, where possible, shall take place during working hours. 

Miscellaneous  amendments  are  also  made  to  the  Organisation  of  Working  Time  Act 
1997,  the  Protection  of  Employees  (Fixed-Term  Work)  Act  2003  and  the  Workplace 
Relations Act 2015.  

Reflecting  the  fact  that  the  Directive  applies  to  workers,  as  defined  by  the  Court  of 
Justice, who have an employment contract or employment relationship, the scope of the 
1994  Act  is  extended  to  include  not  just  apprentices  and  agency  workers  but  also 
individuals who agree with another person “personally to execute any work or service 
for that person”. This will bring many workers in the gig-economy within the scope of 
that Act without them having to establish that they are employed under a ‘contract of 
service’. 

1.2  Sick leave 

The provisions of the Sick Leave Act 2022 came fully into operation on 01 January 2023: 
Sick Leave Act 2022 (Commencement) Order 2022 (S.I. No. 606 of 2022). 

This Act establishes a scheme of statutory sick leave for employees in the private sector 
who have completed 13 weeks continuous service with their employer. The Act provides 
that such an employee is entitled up to and including three statutory sick leave days in 
a year.  

Employers are to pay a prescribed daily rate of payment set at 70 per cent of wages 
subject  to  a  daily  cap  of  EUR  110:  Sick  Leave  Act  2022  (Prescribed  Daily  Rate  of 
Payment) Regulations 2022 (S.I. No. 607 of 2022). 

2 

Court Rulings 

2.1  Working time 

Labour Court, DWT2252, 08 November 2022, Kerry County Council v Walsh. 

The Labour Court has dismissed a claim by a retained firefighter that the entirety of the 
time spent on-call/standby was ‘working time’ for the purposes of the Organisation of 
Working Time Act 1997: Kerry County Council v Walsh DWT2252. Relying on the CJEU 
decision in Case C-214/20, 11 November 2021,  MG v Dublin City Council, the Labour 
Court ruled that the attendance requirements did not place the claimant under major 
constraints and did not have a significant impact on the management of his time in that 
he  was  able  to  pursue  other  activities  for  a  significant  period  of  his  standby  periods, 
including running his own business. Nor was he required to attend all of the callouts. 
CJEU Case C-518/15, 21 Feburary 2018, Matzak was distinguished on the basis that the 
claimant in that case had been required to remain at a place determined by his employer 
during standby periods, namely his home.  

During the hearing, the claimant’s lawyer submitted a letter from Mr Matzak’s legal team 
purporting to confirm that there was no requirement on their client, when on standby, 
to remain at his home. The Labour Court was satisfied, however, that the CJEU’s decision 

December 2022 

52 

 
 
 
 
Flash Report 12/2022 on Labour Law 

was  premised  on  a  requirement  that  Mr  Matzak  be  in  a  place  determined  by  his 
employer. 

In light of its finding that the claimant’s standby time was not working time, the Labour 
Court did not feel the need to consider the claimant’s preliminary point that Directive 
2003/88/EC had been incorrectly transposed into Irish law. 

3  

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Directive  2008/104/EC  is  implemented  in  Ireland  by  the  Protection  of  Employees 
(Temporary  Agency  Work)  Act  2012  (the  2012  Act).  Section  6(1)  of  the  2012  Act 
provides that subject to any collective agreement for the time being standing approved 
under section 8, an agency worker shall, for the duration of his or her assignment with 
a hirer, be entitled to the same ‘basic working and employment conditions’ as to which 
he or she would be entitled if he or she were directly employed by the hirer to do that 
work. 

Section 8 of the 2012 Act empowers the Labour Court to approve collective agreements 
providing for working and employment conditions that differ from the basic employment 
and  working  conditions  applicable  by  virtue  of  section  6  as  respects  agency  workers. 
Among the matters of which the Labour Court must be satisfied before approving the 
collective agreement is the appropriateness of approval “having regard to paragraph 3 
of Article 5 of the Directive”. 

No such agreement has to date been submitted to the Labour Court pursuant to section 
8,  but  the  decision  of  the  CJEU  in  this  case  makes  it  clear  that  before  any  collective 
agreement providing for a lower rate of pay for agency workers could be approved, the 
Labour Court must assess whether the agreement affords agency workers  

“advantages  in  terms  of  basic  working  and  employment  conditions  which  are 
such as to compensate for the difference in treatment they suffer”.  

If the countervailing benefits afforded do not ‘counterbalance’ the effects of the lower 
rate  of  pay,  the  Labour  Court  would  be  precluded  from  approving  the  collective 
agreement. 

Section 6(2) of the 2012 Act provides that subsection (1) shall not, insofar only as it 
relates to pay, apply to an agency worker employed by an employment agency under a 
permanent contract of employment, provided certain conditions as to pay in respect of 
periods  between  assignments  apply:  see  the  Labour  Court  decision  in  Staffline 
Recruitment Ltd v Fitzgerald AWD184. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

53 

 
 
 
 
Flash Report 12/2022 on Labour Law 

Italy 

Summary  

The  Italian  Parliament  has  approved  the  State  budget,  which  contains  provisions 
relating to parental leave, teleworking and voucher-based work.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Budget Law 

On  29  December  2022,  the  Italian  Parliament  approved  the  State  budget  for  the 
financial year 2023 and the multi-year budget for the period 2023–2025 (Act No. 197).  

The law contains some provisions on employment relationships: 

  Parental leave: the allowance for parental leave of working mothers or fathers 
has been increased to 80 per cent  of the worker’s salary (previously it was 30 
per cent for one month within the sixth year of the child, also in cases of adoption 
and custody). For the remaining months of parental leave, the allowance remains 
30 per cent. 

  Smart working: until 31 March 2023, frail workers are entitled to smart working. 
The employer must support remote working, e.g. by assigning different tasks to 
such workers without a change in pay. 

  Voucher-based work: the Budget Law widens the scope of voucher-based work. 
The maximum remuneration an employer can pay for voucher-based work within 
a  year,  which  can  be  used  in  the  tourism  and  the  agricultural  sectors,  ranges 
from EUR 5 000 to EUR 10 000. Employers can use voucher-based work if they 
have a maximum of 10 employees (the previous limit was 5 employees).  Each 
worker  continues  to  receive  no  more  than  EUR  5  000  for  voucher-based  work 
annually. Agricultural enterprises can use voucher-based work for no more than 
45 working days per year for each worker. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

In Italy, temporary agency work is regulated in Article 30 and following in the Legislative 
Decree of 15 June 2015 No. 81, amended by the Law Decree of 12 July 2018 No. 87.  

According to Article 35 para 1 Legislative Decree 81/2015, TAWs are ‘generally’ entitled 
to the same monetary and normative conditions that are not less favourable than those 
provided to the employees of the user undertaking who perform the same tasks. The 
term  ‘generally’  should  be  interpreted  in  the  sense  that  if  several  levels  of  collective 
bargaining agreements apply to the workers (i.e. national, local and company collective 
agreements), the worker has right to all of the conditions provided for in all collective 
bargaining  agreements,  and  a  TAW  cannot  be  paid  a  lower  remuneration  than  an 
employee working in the same company and performing the same tasks. 

Each national collective agreement includes a section on TAW and staff leasing, because 
Italian  legislation  allows  for  some  deviation  in  collective  bargaining  agreements,  but 

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Article  1  (para2)  Legislative  Decree  02  March  2012  No.  .24  establishes  that  national 
collective  agreements,  agreed  between  the  comparatively  more  representative  trade 
unions of workers and  of  employers, may  only apply or introduce provisions  that are 
more favourable for workers than those provided by law.  

For  instance,  collective  agreements  provide  for  methods  and  criteria  for  the 
determination  and  payment  of  remuneration  related  to  the  results  achieved  in 
implementing  programmes  agreed  between  the  parties  or  related  to  the  economic 
performance of the company. Temporary agency workers also have the right to benefit 
from  social  and  welfare  services  provided  to  the  user  undertaking’s  employees, 
excluding  those  services  that  are  conditional  on  participation  in  an  association  or 
cooperative society or to the achievement of a specific seniority  of service. Collective 
agreements  may  not  include  a  derogation  from  the  principle  of  equal  treatment, 
however. 

A  review  of  respect  for  overall  protection  is  based  both  on  the  collectively  agreed 
working conditions and the working conditions that exist in the user undertaking. 

The  notion  of  ‘adequate  level  of  protection’  under  Article  5(4)  of  the  Directive  is  not 
expressly  transposed  or  interpreted,  because  according  to  Italian  law,  an  ‘overall 
protection’ of workers exists, and there is no possibility to derogate from the principle 
established in Article 35 para 1 of Legislative Decree 81/2015.  

In short, Italian legislation is in line with the CJEU’s judgment. 

4 

Other Relevant Information 

4.1  Work-life balance 

On 06 December 2022, the National Labour Inspectorate issued a statement (National 
Labour  Inspectorate  No.  2414)  regarding  the  appropriate  application  of  sanctions 
provided for in Legislative Decree 105/2022, transposing Directive (EU) 2019/1158 of 
the European Parliament and of the Council of 20 June 2019 on work-life balance for 
parents and carers and repealing Council Directive 2010/18/EU (see FR 8/2022). 

The  note  contains  instructions  for  inspectors  on  how  to  detect  and  penalise  possible 
violations of the law. 

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Latvia 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The decision of the CJEU in case C-311/21 has no implications on Latvian law because 
it  does  not  allow  derogations  from  the  mandatory  minimum  legal  regulations  by 
collective agreements with regard to temporary agency workers. 

First,  Article  6(1)  of  the  Labour  Law  (see  Darba  likums,  OG  No.105,  6  July  2001) 
stipulates  that  all  clauses  included  in  employment  contracts  or  collective  agreements 
which provide for less favourable rights than required by the legal regulation are void. 

Second, Article 7(4) and (5) provide for  minimum mandatory  employment conditions 
for temporary agency workers which must be equal to those of the workers of a user 
undertaking. Labour law does not contain any provision allowing a derogation from such 
an obligation by a collective agreement. 

It follows that the decision in case C-311/21 has no implications for Latvian law. 

4 

Other Relevant Information 

Nothing to report. 

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Liechtenstein 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1   Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement GmbH  

All leading sentences of the judgment deal with Article 5(3) of Directive 2008/104/EC. 
The relevant wording of this Article is as follows: Member States may, after consulting 
the  social  partners,  give  them,  at  the  appropriate  level  and  subject  to  the  conditions 
laid  down  by  the  Member  States,  the  option  of  upholding  or  concluding  collective 
agreements which, while respecting the overall protection of temporary agency workers, 
may  establish  arrangements  concerning  the  working  and  employment  conditions  of 
temporary agency workers, which may differ from those referred to in para 1. At the 
centre  of  the  present  judgment  is  the  requirement  that  the  ‘overall  protection  of 
temporary agency workers’ – who, by means of a collective agreement, have some less 
favourable terms and conditions of employment than employees directly employed by 
the user undertaking – must be preserved. 

Temporary  agency  work  in  Liechtenstein  is  regulated  by  the  Act  on  the  Placement  of 
Workers  and  Temporary  Agency  Work  (Gesetz  über  die  Arbeitsvermittlung  und  den 
Personalverleih,  Arbeitsvermittlungsgesetz,  AVG,  LR  823.10).  Article  1(1a)(a)  states 
that  this  Act  serves,  among  other  things,  to  implement  Directive  2008/104/EC  on 
temporary  agency  work.  Article  19a(1)  establishes  the  principle  of  equal  treatment 
between  temporary  agency  workers  and  employees  directly  employed  by  the  user 
undertaking  with  regard  to  basic  working  and  employment  conditions.  According  to 
Article  19a(2)(b),  this  principle  may  be  derogated  from  by  collective  agreement, 
provided the overall protection of the temporary agency workers is respected. 

By  explicitly  and  literally  adopting  this  important  element  from  the  EU  Directive  in 
Liechtenstein law, it is thus entirely possible to interpret the concept of overall protection 
in conformity with European law and the case law of the CJEU. 

Effective  judicial  control  is  guaranteed  in  accordance  with  Liechtenstein’s  judicial 
system. Legal protection functions at both the individual and collective level. 

There is a collective agreement on temporary agency work. The collective agreement is 
available here. 

This  collective  agreement  does  not  contain  any  specific  provisions  on  the  problems 
addressed in the CJEU ruling. 

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4 

Other Relevant Information 

4.1  Posting of workers 

The government has issued Decision No. 19/2022 of the EEA Joint Committee amending 
Annex XVIII to the EEA Agreement, which is available here. According to this Decision, 
the  following  Directive  shall  be  incorporated  into  the  EEA  Agreement:  Directive  (EU) 
2018/957  of  the  European  Parliament  and  of  the  Council  of  28  June  2018  amending 
Directive 96/71/EC concerning the posting of workers in the framework of the provision 
of services (text with EEA relevance). 

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Lithuania 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The  ruling  of  the  CJEU  has  no  direct  implications  for  Lithuanian  labour  law,  because 
Lithuania  has  not  made  use  of  the  possibility  provided  in  Article  5  (3)  of  Directive 
2008/104 to allow the social partners to deviate from the principle of equal treatment 
by way of collective agreement 

However, the ruling raises some important general questions with regard to the position 
of  the  Court  to  require  Member  States  to  ensure  the  necessity  of  effective  judicial 
reviews in cases of (possible) deviations from the standard of protection. On the other 
hand, the notion of ‘overall protection’ which shall be safeguarded in case of deviation, 
is totally unclear in Lithuanian law, as no one has ever tried to provide for alternative 
means  of  ‘overall  protection’  (not  only  for  temporary  agency  workers  but  for  other 
categories  of  workers  as  well)  and  no  one  has  ever  challenged  the  legality  of  those 
alternatives. 

4 

Other Relevant Information 

Nothing to report. 

December 2022 

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Luxembourg 

Summary  

(I) A new bill implements Directive 2020/1057 on the posting of drivers in the road 
transport sector. 

(II) The rules on parental leave have been adapted to comply with CJEU case law. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Posting of workers 

A bill implementing Directive 2020/1057 on the posting of drivers in the road transport 
sector has been adopted. 

The  law  also  introduces  certain  changes  to  the  general  posting  regime  (Directive 
2014/67), on the one hand, to clarify and adapt the terminology and to take account of 
the observations made by the European Commission, on the other. 

For  example,  it  will  no  longer  be  necessary  to  share  the  identity  of  the  ‘effective 
representative’ at the time of posting since the Commission considers such an obligation 
to  neither  be  justified  nor  proportionate.  Similarly,  it  will  no  longer  be  necessary  to 
communicate the posted employee’s ‘profession’. The obligation to verify the declaration 
will  only  apply  in  cases  of  chains  of  subcontractors.  Until  now,  any  client  (maître 
d’ouvrage  ou  donneur  d’ordre)  who  entered  into  a  contract  with  a  service  provider 
posting  employees  was  subject  to  this  obligation.  The  law  also  takes  account  of  the 
Commission’s  criticism  that  certain  documents  may  need  to  be  retained  or  provided 
upon request, but not that these documents have to be submitted along with the initial 
declaration. 

A  number  of  documents  will  no  longer  be  necessary  at  all,  because  they  are  already 
subject to control by the posted worker’s Member State of origin. 

The  law  furthermore  takes  account  of  the  Commission’s  criticism  that  no  specific 
‘recognition’  is  required  for  cross-border  enforcement  of  financial  administrative 
penalties and/or fines. Requests for enforcement of an administrative penalty or fine or 
for notification of a decision imposing such a penalty or fine must be made without the 
requirement for any additional formality. Moreover, translations into French or German 
will no longer be required. 

To  transpose  Directive  2020/1057,  a  new  chapter  entitled  ‘Posting  of  employees 
performing mobile road transport activities’ has been introduced into the Labour Code 
(Articles L. 145-1 et seq). The text is similar to that of the Directive and does not call 
for  any  particular  observations.  The  final  version  of  the  text  was  subject  of  a  large 
number of amendments following the recommendations of the Council of State, which 
deemed that the initial draft was not in conformity with the Directive. 

The  bill  also  adapts  the  penalty  procedure  in  the  event  of  labour  law  breaches  in 
subcontracting chains, as well as in the event of violations of health and safety standards 
in  the  accommodation  (salubrité  des  logements)  provided  to  employees.  As  regards 
accommodation,  the  Director  of  ITM  will  not  only  be  able  to  intervene  against  the 
employer, but also against the owner or manager (exploitant) of the premises. Instead 
of ordering an evacuation and closure of inacceptable premises, the labour inspectorate 
will  also  be  authorised—in  case  of  less  serious  breaches—to  impose  a  deadline  for 
compliance.  Administrative  sanctions  have  been  replaced  with  criminal  sanctions, 
namely a fine of up to EUR 125 000 and imprisonment of up to 5 years.  

The law also introduces a general regime of protection against retaliation for legal action, 
which had not explicitly existed until now. It was thus decided to take advantage of the 

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Directive’s transposition to introduce such explicit protection as required in Article 1(5) 
of Directive 2014/67. No employee may be subject to retaliation in response to a legal 
action taken to enforce his or her rights under the Labour Code. Any dismissal resulting 
from such action is null and void, and the employee has 15 days to submit a claim for 
nullity. 

See here for Loi du 23 décembre 2022 portant modification : 1° du Code du travail en 
vue  de  la  transposition  de  la  directive  (UE)  2020/1057  du  Parlement  européen  et  du 
Conseil  du  15  juillet  2020  établissant  des  règles  spécifiques  en  ce  qui  concerne  la 
directive 96/71/CE et la directive 2014/67/UE pour le détachement de conducteurs dans 
le secteur du transport routier et modifiant la directive 2006/22/CE quant aux exigences 
en  matière  de  contrôle  et  le  règlement  (UE)  n°  1024/2012  ;  2°  de  certaines  autres 
dispositions du Code du travail. 

1.2  Parental leave 

A law has been adopted to bring Luxembourg law in line with EU law, as interpreted in 
CJEU  cases  C-802/18,  2  April  2020  and  C-129/20,  25  February  2021,  Caisse  pour 
l'avenir des enfants. The first case dealt with social security aspects of child allowances. 
The second case concerned parental leave (Luxembourg legislation did not comply with 
Directive 2010/18/EU). 

Luxembourg’s  legislation  imposes  two  conditions  for  entitlement  to  parental  leave, 
namely the worker must be employed and insured not only for a continuous period of 
at least 12 months immediately preceding the commencement of parental leave, but he 
or she must also be employed at the time of the child’s/ children’s birth or the arrival of 
an adopted child. 

The  CJEU  stated  that  the  revised  Framework  Agreement  on  parental  leave  must  be 
interpreted as not precluding national legislation, which makes entitlement to parental 
leave  conditional  on  a  period  of  uninterrupted  employment  of  at  least  12  months 
immediately preceding the commencement of parental leave. By contrast, it precludes 
national legislation that makes entitlement to parental leave conditional on the parent 
having the status of ‘worker’ at the time of the birth or adoption of the child. 

The CJEU emphasised in particular the individual right of every worker to parental leave 
(§ 46). 

To comply with the requirements of the Court of Justice of the European Union, Article 
306 of the Social Security Code and the related provisions in the Labour Code, the State 
Civil  Servants’  Statute  and  the  Municipal  Civil  Servants’  Statute  were  amended. 
Entitlement  to  parental  leave  is  now  only  subject  to  the  condition  of  uninterrupted 
employment for a period of  12 months immediately preceding the  commencement of 
parental leave. 

See here for Loi du 23 décembre 2022 portant modification : 1° du Code de la sécurité 
sociale ; 2° du Code du travail ; 3° de la loi modifiée du 16 avril 1979 fixant le statut 
général des fonctionnaires de l’État ; 4° de la loi modifiée du 24 décembre 1985 fixant 
le statut général des fonctionnaires communaux. 

1.3  Measures to respond to the COVID-19 crisis 

The  temporary  derogations  introduced  in  response  to  the  pandemic  have  gradually 
expired, and very few special rules are still in force.  

One  of  the  rules  discussed  in  several  previous  Flash  Reports  concerned  the  level  of 
additional  income  people  in  early  retirement  who  return  to  work  in  the  health  care 

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sector,  medical  analysis  laboratories  and  care  assistance  could  earn.  The  aim  was  to 
encourage such persons to return to work. 

Since  there  is  still  a  need  for  labour  and  the  development  of  the  pandemic  is  not 
predictable, this temporary measure has been extended until 31 March 2023. 

See here for Loi du 23 décembre 2022 portant modification de la loi modifiée du 20 juin 
2020 portant 1° dérogation temporaire à certaines dispositions en matière de droit du 
travail  en  relation  avec  l’état  de  crise  lié  au  Covid-19  ;    2°  modification  du  Code  du 
travail. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1   Temporary agency work 

Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Case C 311/21 should have no implications for Luxemburg. 

Temporary agency workers are subject to the same legal provisions as regular workers. 
They  fully  benefit  from  the  principle  of  equal  treatment,  including  in  terms  of 
remuneration. 

Collective agreements for temporary agency workers are admissible. In practice, there 
is one single collective agreement applicable to all temporary agency workers, as it has 
been declared generally applicable for all temporary work agencies. 

Luxembourg did not implement Article 5 (3) of the Directive, which allows social partners 
to establish arrangements, i.e. the question of ‘overall protection’ cannot arise.  

In  accordance  with  the  general  principle  applicable  to  all  collective  agreements, 
collective  agreements  can  only  derogate  from  the  law  if  the  provisions  are  more 
favourable for the employees. 

A collective agreement for temporary agency workers cannot derogate from the principle 
of equal treatment. 

4 

Other Relevant Information 

4.1  Minimum wage 

As stated in previous Flash Reports, the social minimum wage was increased by 3.2 per 
cent as of 01 January 2023. The gross minimum wage is now set at EUR 2 387.40 per 
month (EUR 2 864.88 for qualified workers). 

See here for Loi du 23 décembre 2022 portant modification de l’article L. 222-9 du Code 
du travail. 

The  minimum  inclusion  revenue  (REVIS)  has  also  been  increased  by  3.2  per  cent. 
Pensions have been raised by 2.2 per cent. 

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Malta 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1   Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The implications of this ruling are subdivided into five separate areas. 

Article 5(3) of Directive 2008/104/EC of the European Parliament and of the Council of 
19  November  2008  on  temporary  agency  work  must  be  interpreted  as  meaning  that 
that provision, by its reference to the concept of ‘overall protection of temporary agency 
workers’,  does  not  require  account  to  be  taken  of  a  level  of  protection  specific  to 
temporary agency workers that is greater than that laid down for workers in general by 
provisions  on  basic  working  and  employment  conditions  under  national  and  EU  law. 
However,  where  the  social  partners,  by  means  of  a  collective  agreement,  authorise 
differences in treatment with regard to basic working and employment conditions to the 
detriment  of  temporary  agency  workers,  that  collective  agreement  must,  in  order  to 
respect the overall protection of the temporary agency workers concerned, afford them 
advantages in terms of basic working and employment conditions, which are such as to 
compensate for the difference in treatment they suffer. 

The  Temporary  Agency  Workers  Regulations  2010,  which  is  available  here,  makes  it 
very  clear  that,  4(1),  without  prejudice  to  the  provisions  of  Regulation  5,  the  basic  
working and employment conditions of temporary agency workers shall, for the duration 
of their assignment at a user undertaking, be at least those that would apply if they had 
been directly recruited by that undertaking to occupy the same job, by virtue of the Act, 
or any regulations issued thereunder or under any other legislation or by virtue of any 
applicable  collective  agreement.  This  Regulation  makes  it  very  clear  that  the  basic 
working conditions of temporary agency workers shall be at least those that would apply 
for other workers directly employed by the user undertaking, whose working conditions 
should be those applicable in terms of national and EU law. In other words, Maltese law 
is fully aligned with this first part of the ruling. Furthermore, whilst collective agreements 
are generally not widely available in Malta, it is very difficult—if not outright impossible—
for  any  collective  agreement  to  agree  to  working  conditions  that  are  lower  in  overall 
protection for any category of workers (including temporary agency workers) than that 
afforded to them by EU law and Maltese law. Hence, it is highly unlikely that temporary 
agency workers would be subjected to such a difference in treatment.   

Article 5(3) of Directive 2008/104 must be interpreted as meaning that compliance with 
the obligation to respect the overall protection of temporary agency workers must be 
assessed,  in  concrete  terms,  by  comparing,  for  a  given  job,  the  basic  working  and 
employment conditions applicable to workers recruited directly by the user undertaking 
with those applicable to temporary agency workers, in order to be able to determine 

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whether  the  countervailing  benefits  afforded  in  respect  of  those  basic  conditions  can 
counterbalance the effects of the difference in treatment suffered. The Regulation seems 
to  be  silent  on  this  “assessment”  but  not  about  the  actual  equality  of  treatment,  as 
submitted above. Indeed, the starting point is in no way tolerant of any difference in 
treatment  between  direct  employees  of  the  user  undertaking  and  temporary  agency 
workers employed there. It is quite natural for the Regulations to assume that no such 
difference  in  terms  of  basic  employment  conditions  exists.  Under  Regulation  8  of  the 
Regulations of Maltese Law, which transposes Article 6(4) of the Directive 2008/104, a 
difference  in  treatment  may  be  acceptable  only  with  respect  to  training  and  facilities 
accessible  to  the  employees  in  the  user  undertaking  –  only,  however,  if  objective 
reasons  exist  therefor.  What  these  “objective  reasons”  may  amount  to,  of  course,  is 
quite another matter altogether. A question here arises. If, say, in a workplace with a 
fluctuating workforce due to seasonality, would subsidies for (say) childcare amount to 
an “objective reason” to close off access to such facilities?  

Article 5(3) of Directive 2008/104 must be interpreted as meaning that the obligation 
to  respect  the  overall  protection  of  temporary  agency  workers  does  not  require  the 
temporary  agency  worker  concerned  to  have  concluded  a  permanent  contract  of 
employment with a temporary work agency.  

Article  5(3)  of  Directive  2008/104  must  be  interpreted  as  meaning  that  the  national 
legislature is not required to lay down the conditions and criteria designed to respect 
the  overall  protection  of  temporary  agency  workers,  within  the  meaning  of  that 
provision,  where  the  Member  State  concerned  gives  the  social  partners  the  option  of 
upholding or concluding collective agreements which authorise differences in treatment 
with  regard  to  basic  working  and  employment  conditions  to  the  detriment  of  those 
workers. 

As  for  the  fourth  area,  there  are  no  implications  for  Maltese  law  because  the 
Regulations—or indeed Maltese law—do not give social partners the option of upholding 
or concluding collective agreements that authorise differences in treatment with regard 
to  basic  working  and  employment  conditions  to  the  detriment  of  temporary  agency 
workers.  On  the  contrary,  Article  3  (4)  of  the  Regulations  makes  it  clear  that  any 
collective  agreement  containing  provisions  that  are  more  favourable  shall  not  be 
prejudiced  by  the  Regulations.  It  is  clear  that  no  collective  agreement  may  be  less 
favourable than the protection afforded by the Regulations and the Regulations do not 
allow  for  a  difference  in  treatment  (save  what  is  stated  above).  Hence,  it  is  safe  to 
assume  that  it  is  not  possible  for  any  collective  agreement  in  Malta  to  allow  for  any 
difference in treatment. 

As for the fifth area, it is clear that under Maltese law, collective agreements cannot 
authorise a difference in treatment. If there are differences in treatment, such difference 
are null and void. Hence, there does not seem to be any implications for Maltese law in 
this regard. 

The Regulations wanted to make it very clear that equal treatment between temporary 
agency  workers  and  permanent  workers  in  the  user  undertaking  is  obligatory. 
Consequently,  it  is  difficult  to  conceptualise  how,  under  Maltese  law,  differences  in 
treatment could be authorised by means of a collective agreement. 

4 

Other Relevant Information 

Nothing to report. 

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64 

 
 
 
 
 
 
 
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Netherlands 

Summary  

(I) The government has approved a bill on mandatory certification for employment 
agencies, aimed at fighting fraudulent temporary work agencies. A court has held that 
assigning a temporary agency worker for a total period of 13 years is not abuse. 

(II) A court has ruled on the role of a dynamic incorporation clause in a transfer of 
undertakings.   

(III) A court has ruled that the remuneration paid to two crane operators for overtime 
and the surcharges received for night shifts should be included in the calculation of 
holiday pay. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Temporary agency work 

On  09  December  2022,  the  Council  of  Ministers  approved  the  bill  on  mandatory 
certification  for  employment  agencies  aimed  at  fighting  fraudulent  temporary  work 
agencies.  Certification  has  two  aims:  (1)  ensuring  that  temporary  work  agencies 
guarantee that all their employees work under good working and living conditions, and 
(2) improving the vulnerable position of migrant workers and ensuring a level playing 
field for all user undertakings. 

The bill has been submitted to the Council of State (Raad van State) for comment, after 
which it will be submitted to the Lower House (Tweede Kamer) sometime in spring 2023.  

Certification will become mandatory as of 2024. For the issuing of certificates, a new 
organisation  will  be  established  that  will  start  operating  in  the  summer  of  2024. 
Moreover, the Labour Inspectorate’s capacity will be expanded from 2023 onwards to 
enforce the certification requirement, starting from the date temporary work agencies 
are able to obtain a certificate, most likely from 01 January 2025 onwards. That means 
that as of that date, temporary work agencies that have no such certificate and user 
undertakings that hire from non-certified agencies can be fined. 

1.2  Self-employment 

On  16  December  2022,  the  Ministry  of  Social  Affairs  and  Employment  published  the 
Progress Letter working with and as self-employed (Voortgangsbrief werken met en als 
zelfstandige(n)), informing about measures to be taken in the context of working with 
self-employed and as self-employed. 

Three  types  of  measures  are  proposed:  (1)  improving  the  level  playing  field;  (2) 
clarifying the rules on  assessing the employment relationship and legal presumption; 
and (3) improving the enforcement of bogus self-employment. 

Ad (1) Improving the level playing field: 

  Phasing out (i) the self-employed tax deduction (zelfstandigenaftrek) in several 
steps from EUR 6 310 in 2022 to EUR 900 in 2027, starting in 2023, expected to 
result in higher tariffs to be paid by self-employed persons, and (ii) the fiscal old-
age  reserve  (fiscale  oudedagsreserve),  a  scheme  that  allows  entrepreneurs  to 
set  aside  tax-facilitated  investments  for  old  age  combined  with  taking  steps 
towards an employment-neutral pension framework; 

 

Introducing a mandatory sickness insurance for self-employed persons; 

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  Updating the Guidelines on Collective Bargaining for Self-employed Workers in 
line with the  European  Commission’s guidelines (approximately early  2023) to 
allow self-employed workers to use the full scope for collective bargaining that 
the Commission’s guidelines provide for this purpose; 

  Expanding  the  number  of  seats  of  the  Social-Economic  Council  (Sociaal 
Economische  Raad)  to  strengthen  the  voice  of  self-employed  persons  in  the 
Council,  the  main  advisory  council  for  government  and  Parliament  on  socio-
economic issues. 

Ad  (2)  Clarifying  the  rules  on  assessing  the  employment  relationship  and  legal 
presumption: 

 

 

Increasing clarity by fleshing out the open standard ‘working in the service of’ 
(‘werken in dienst van’) from Article 7:610 Dutch Civil Code with the involvement 
of social partners, experts and stakeholders; 

Introducing  a  rebuttable  legal  presumption  based  on  a  gross  hourly  rate 
(rechtsvermoeden gebaseerd op een uurtarief); 

  Continuing  the  use  of  the  web  module  to  assess  employment  relationships 
(webmodule  beoordeling  arbeidsrelaties)  which  aims  at  giving  an  ex  ante 
indication, based on the applicable laws and case law, on the classification of an 
employment relationship.  

Ad (3) Improving the enforcement of eliminating bogus self-employment: 

 

Increasing  the  enforcement  capacity  of  the  Tax  and  Customs  Administration 
(Belastingdienst) by raising the staff capacity from 55 fte to 80 fte; 

  Gaining  insight  into  the  size  of  the  actual  enforcement  gap  as  to  the  correct 

classification of the employment relationship; 

  Specifying the collaboration between the Tax and Customs Administration with 
(Uitvoeringsinstituut 

the 
Werknemersverzekeringen) and the Labour Inspectorate (Arbeidsinspectie); 

Insurance 

Employee 

Agency 

  Abolishing the enforcement moratorium as of 1 January 2024. 

1.3  STAP budget for training and development 

With  a  view  to  reducing  abuse  and  improper  use  of  the  STAP  budget  (a  financial 
incentive  to  improve  an  individual’s  labour  market  position,  see  January  2022  Flash 
Report), the Dutch government has decided to not open the January 2023 application 
period. Time is needed to conduct investigations that will offer insights into abuse and 
misuse.  The  next  application  period  starts  on  Tuesday  28  February  2023.  In  case 
training courses are part of the investigation undertaken by the Assessment Chamber 
(Toetsingskamer),  the  mere  fact  that  a  course  is  under  investigation  is  insufficient 
reason to not pay a trainer (yet). To limit the number of payments for courses that do 
not meet the conditions for the STAP budget, applications in January 2023 will be closed. 

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2 

Court Rulings 

2.1  Transfer of undertaking 

Court of Appeal Den Bosch, ECLI:NL:GHSHE:2022:4106, 29 November 2022 

This case examined whether after a transfer of undertaking within the meaning of Article 
7:662 Dutch Civil Code and Article 1 Directive 2001/23/EC, the employees could derive 
rights from wage increases laid down in a new version of a collective agreement to which 
the employees were bound before the transfer due to a dynamic incorporation clause. 
The court derived from the CJEU’s Asklepios case that a dynamic incorporation clause 
transfers  to  the  transferee,  provided  that  the  transferee  has  the  possibility,  under 
national  law,  to  change  the  working  conditions  consensually  or  unilaterally  after  the 
transfer. 

The  court  considered  that  this  is  possible  under  Dutch  law.  Under  Dutch  law,  the 
transferee  has  the  possibility  to  conclude  a  new  employment  contract  with  the 
employee, or to unilaterally change the terms  of an existing employment contract by 
relying on either Article 7:613 Dutch Civil Code, Article 7:611 Dutch Civil Code and/or 
Article  6:248  paragraph  2  Dutch  Civil  Code  (and  with  reference  to  the  standard 
formulated by the Supreme Court in the Stoof/Mammoet case). This means that under 
Dutch law, a dynamic incorporation clause transfers to the transferee. 

In the present case, the transferee made use of the possibility to  modify the working 
conditions by offering the employees a new employment contract. The new employment 
contract to which the employees agreed knowingly and informedly, did not refer to the 
collective agreement. As a result, the new collective agreement did not form part of the 
employment contract. The employees were therefore not entitled to the wage increases 
agreed in the new collective agreement. 

2.2  Overtime and holiday pay 

Court 
ECLI:NL:GHDHA:2022:2370, 06 December 2022, 

Hague, 

Appeal 

The 

of 

ECLI:NL:GHDHA:2022:2369 

and 

These  cases  examined  whether  the  remuneration  paid  to  two  crane  operators  for 
overtime  and  the  surcharges  they  received  for  night  shifts  should  be  included  in  the 
calculation of holiday pay within the meaning of Article 7:639 Dutch Civil Code, which 
corresponds with Article 9 Directive 2003/88/EC. Regarding the remuneration paid for 
overtime, the court derived three criteria to establish whether that remuneration should 
be  included  in  the  calculation  from  the  CJEU’s  judgment  in  the  case  Hein  v  Albert 
Holzkamm GmbH & Co. KG: (1) the overtime results from obligations arising from the 
employment contract, (2) overtime occurs on a regular basis, and (3) the remuneration 
for overtime constitutes a significant part of the employee’s total remuneration. Since 
there  was  a  long-standing  practice  of  working  overtime,  the  crane  operators  were 
continuously scheduled for more than 40 hours per week and the parties did not dispute 
that the remuneration for overtime was an important part of their total remuneration, 
the court determined that these criteria were indeed met. 

Based on the CJEU’s ruling in case Williams and Others v British Airways plc, the court 
also answered the question whether the surcharges for night shifts should be included 
in the calculation in the affirmative, since working the crane at night is an inconvenient 
aspect which is linked intrinsically to the performance of  the task assigned to a crane 
operator under the employment contract. 

Furthermore, the court found that since Article 7:639 Dutch Civil Code does not leave 
room for differentiation between statutory and non-statutory periods of annual leave, 
the  inclusion  of  remuneration  for  overtime  and  surcharges  for  night  shifts  in  the 
calculation  of  holiday  pay  goes  for  both  the  statutory  period  of  annual  leave,  which 

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corresponds  with  the  minimum  of  four  weeks  of  Directive  2003/88/EC,  and  the  non-
statutory period of annual leave not regulated by Directive 2003/88/EC. 

2.3  Temporary agency work 

Court of Rotterdam, ECLI:NL:RBROT:2022:11010, 12 December 2022  

This  case  is  the  first  case  in  which  a  Dutch  court  interpreted  the  prohibition  to 
permanently  assign  a  temporary  agency  worker  to  the  same  user  undertaking  in 
accordance  with  Article  5(5)  Directive  2008/104/EC.  In  the  present  case,  the  worker 
had  worked  for  (legal  predecessors  of)  the  same  user  undertaking  for  a  continuous 
period  of  13  years  based  on  various  assignments  by  two  different  temporary  work 
agencies. The key question was whether the worker had an employment contract with 
the  user  undertaking.  The  court  considered  that  a  limitation  of  the  duration  of  the 
number  of  consecutive  assignments  of  a  temporary  agency  worker  to  the  same  user 
undertaking is not regulated by Dutch law. The court added that Directive 2008/104/EU 
does  not  require  Member  States  to  do  so:  it  only  requires  Member  States  to  take 
‘appropriate  measures’  to  prevent  abuse.  In  the  opinion  of  the  court,  it  is  up  to  the 
Dutch legislator to regulate by law (or not) a maximum period of assignments as well 
as the sanctions when this period is exceeded. It is not for the court to anticipate this 
and ‘sit in the legislator’s chair’. 

The court considered that the issue might be different, however, in case of abuse. In 
that case, support for accepting the existence of an employment contract with the user 
undertaking could be found in the case law of the Supreme Court on abusive practices 
(this case law concerns the circumvention of the rules of successive fixed-term contracts 
(Article 7:668a Dutch Civil Code) by alternating fixed-term employment contracts with 
temporary  agency  work  contracts).  However,  even  though  a  continuous  period  of  13 
years constitutes an extensive period, it is insufficient to prove abuse within the meaning 
of  Directive  2008/104/EC.  In  this  regard,  the  court  discussed,  first,  that  the  contract 
between the worker and the temporary work agency was a genuine temporary agency 
work  contract.  The  worker  was  assigned  to  different  user  undertakings  before  being 
assigned to the user undertaking in question and the temporary work agency, besides 
paying wages, played a substantial role in the performance of the employment contract. 
Second,  the  court  found  that  there  was  an  objective  explanation  for  successive 
assignments.  Given  the  nature  of  its  business  (manufacturing),  the  user  undertaking 
had a legitimate interest in a ‘flexible shell’. As part of that flexible shell, the temporary 
agency  worker  was  deployed  in  various  branches  of  the  undertaking,  without  much 
responsibility. Third, the court found that in the past, the user undertaking had offered 
the employee a (fixed-term) employment contract, which shows it was not a policy of 
the  user  undertaking  to  not  directly  employ  temporary  agency  workers  under  any 
circumstances. 

Based on these fact, the court ruled that this case involved the use and not abuse of 
temporary agency work contracts. By extension, the comparison to the abovementioned 
case of the Supreme Court on abusive practices does not apply. As a result, the court 
determined that no employment contract had existed between the worker and the user 
undertaking. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

This case concerned the equal treatment of temporary agency workers. Following Article 
8(1) Law allocation to labour force by intermediaries (Wet allocatie arbeidskrachten door 
intermediairs),  in  The  Netherlands,  temporary  agency  workers  shall  be  entitled  to  at 

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least  the  same  terms  and  conditions  of  employment  as  those  applicable  to  regular 
employees working in equal or equivalent positions in the user undertaking. Derogation 
from the main rule is possible (Article 8(4)), yet does not specify that an overall level 
of protection must be guaranteed. The only 'guarantee' given in Article 8(4) is that the 
collective  agreement  must  provide  for  a  rule  preventing  abuse  against  successive 
assignments. 

Where a temporary work agency assigns a worker to a user undertaking, it is likely that 
the  agency  is  subject  to  the  generally  binding  Collective  Labour  Agreement  for 
Temporary  Agency  Workers  2021-2023  (ABU  Cao  voor  Uitzendkrachten  2021-2023). 
Under Article 16 of the collective agreement, the temporary agency worker is entitled 
to the user undertaking’s remuneration scheme. As of 01 January 2023, remuneration 
covers 10 elements, which are each at least the same as those earned by employees in 
the same or similar jobs at the user undertaking. The 10 elements are:  

(1) 

periodic wage that applies to the pay scale;  

(2) 

the application reduction of working hours; 

(3) 

(4) 

(5) 

(6) 

(7) 

all supplements for working during irregular hours and/or under (physically) 
stressful conditions related to the nature of the work (e.g. overtime, working 
at night/at weekends/on public holidays, shifted hours and shift work, working 
in low/high temperatures, exposure to hazardous substances, dirty work); 

initial  wage  increase  (amount  and  timing  in  accordance  with  the  user 
undertaking’s policy); 

expense allowances (for as long as the agency is not liable to pay income tax 
and national insurance contributions and premiums over these allowances); 

increments  (amount  and  timing  in  accordance  with  the  user  undertaking’s 
policy); 

reimbursement of travel hours and/or travel time related to the work (unless 
they are considered hours worked); 

(8) 

one-off payments (not including periodically repeated payments); and 

(9) 

home working allowances; 

(10) 

fixed end-of-year payments (amount and timing as per the user undertaking’s 
policy). 

A  similar  provision  applies  to  temporary  work  agencies  admitted  as  members  to  the 
Netherlands  Association  of  Intermediary  Organisations  and  Private  Employment 
Agencies (Nederlandse Bond van Bemiddelings- en Uitzendondernemingen) (see Article 
16  Collective  Labour  Agreement  for  Temporary  Agency  Workers,  NBBU  Cao;  this 
collective agreement is not generally binding). 

As  for  other  basic  and  working  employment  conditions  (Article  3(1)(f)  Directive 
2008/104/EC), the collective agreements do not refer to the conditions applicable at the 
user undertaking. 

A difference in treatment to the detriment of the temporary agency worker is permissible 
in the following situations, namely where: 

(a) the  collective  agreement  applicable  to  the  user  undertaking  contains  pay 
elements  that  go  beyond  those  exhaustively  mentioned  in  Article  16  of  both 
collective agreements and thus is more favourable to temporary agency workers. 
In  such  a  situation,  the  collective  agreement  that  governs  the  terms  and 
conditions  of  employment  of  similarly  bound  workers,  most  likely  the  user 
undertaking’s  collective  agreement,  should  apply  to  the  temporary  agency 
worker. 

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(b) the user undertaking’s collective agreement is a minimum collective agreement 
(i.e. allowing for more favourable employment conditions than determined in the 
collective  agreement)  and  the  agency’s  collective  agreement  is  a  standard 
collective  agreement  (i.e.  allowing  no  derogation  from  the  level  of  protection 
provided  in  the  collective  agreement).  If  the  agency  collective  agreement 
contains a provision referring to the applicability of the user undertaking’s basic 
working  and  employment  conditions  and  if  both  collective  agreements  contain 
the  same  pay  elements,  there  is  no  need  for  any  comparison.  Yet,  where  the 
agency’s  collective  agreement  contains  less  pay  elements  than  the  user 
undertaking’s collective agreement, the agency may not derogate at all from the 
collective  agreement  it is  bound  by,  even  if  the  user  undertaking’s  agreement 
would allow temporary agency workers a higher pay. 

(c) the collective agreement applicable to the user undertaking is generally binding 
and  contains  provisions  applicable  to  temporary  agency  workers,  while  the 
collective agreement applicable to the temporary work agency is not generally 
binding. Here, the user undertaking’s collective agreement would prevail because 
a declaration of general bindingness is an act of substantive law.  

(d) the collective agreement applicable to the temporary work agency is  generally 
binding, while the collective agreement applicable to the user undertaking is not. 
Here, the agency’s collective agreement would prevail because a declaration of 
general bindingness is an act of substantive law. 

(e) Both user and agency collective agreements are (not) generally binding and both 
are minimum collective agreements based on the favourability principle a choice 
must be made. 

(f)  both  user  and  agency  agreements  are  (not)  generally  binding  and  both  are 
standard collective agreements based on the favourability principle a choice must 
be made. 

(g) the user undertaking’s collective agreement is a standard collective agreement 
and the agency’s collective agreement is a minimum collective agreement. Here, 
the user undertaking may not derogate at all from the collective agreement it is 
bound  by,  even  if  the  agency’s  agreement  would  allow  temporary  agency 
workers  more  favourable  basic  working  and  employment  conditions,  except 
where  the  user  undertaking’s  collective  agreement  would  allow  for  such 
derogation. 

In  situations (a), (e) and (f), the temporary  work agency would need to, in line with 
point  49  of  the  CJEU’s  ruling,  (1)  determine  which  basic  working  and  employment 
conditions would apply to the temporary agency worker if he or she had been recruited 
directly  by  the  user  undertaking  to  occupy  the  same  job,  (2)  compare  those  basic 
working and employment conditions with those resulting from the collective agreement 
to which the temporary agency worker is actually subject, and (3) assess whether the 
countervailing benefits afforded can offset the difference in treatment suffered. 

Such an assessment is not possible for situations © (generally binding user collective 
agreement applies per definition, so no comparison of collective agreements), (b) (no 
comparison possible unless provided for in the agency’s standard collective agreement), 
(d)  (generally  binding  agency  collective  agreement  applies,  so  no  comparison  of 
collective agreements), and (g) (no comparison possible unless provided for in the user’s 
standard collective agreement). 

This may require the social partners and/or the legislator to consider taking action to 
bring regulations in line with the CJEU’s ruling in TimePartner, especially for situations 
in  which  no  comparison  is  possible  and  thus  no  assessment  can  be  made  about  the 
comparability of the basic working and employment conditions as well as whether the 
countervailing benefits afforded can offset the difference in treatment suffered. 

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4 

Other Relevant Information 

4.1  Collective agreement for temporary agency workers 

On  20  December  2022,  the  social  partners  reached  a  negotiation  result  for  a  new 
collective  agreement  for  temporary  agency  workers.  The  most  important  changes 
concern: 

  From  01  July  2023,  relevant  work  experience  will  be  taken into  account  when 
determining  the  applicable  pay  scale  for  temporary  agency  workers.  To 
determine  the  relevant  work  experience,  the  temporary  work  agency  shall 
consider the individual’s education, work experience and competences provided 
by the temporary agency worker. Upon request by the temporary agency worker, 
the temporary work agency must explain how the pay scale was established. 

  The social partners will take further steps in 2023 to achieve equal working and 
employment conditions by expanding the notion of pay as per 01 July 2023 so 
as to include the following elements: all allowances (toeslagen) as applicable in 
the  user  undertaking  and  the  user  undertaking’s  pay  extended  to  include  all 
reimbursements of expenses, regardless whether they can be paid free of wage 
tax  and  social  security  contributions  in  accordance  with  the  applicable  tax 
legislation, whereby the part of the reimbursement that is not specifically exempt 
by law is paid gross. 

  Periodic increments shall be awarded to temporary agency workers in the same 
manner  as  to  employees  directly  employed  with  the  user  undertaking.  If  the 
awarding  of  a  periodic  increase  depends  on  the  assessment  of  the  temporary 
agency worker, the following applies: the temporary agency worker will always 
be  awarded  a  periodic  increase,  except  if  the  temporary  work  agency  can 
demonstrate  that  the  temporary  employee  has  been  given  a  negative 
assessment in accordance with the rules and procedures at the user undertaking, 
and if no or no timely assessment has been made, the temporary agency worker 
will  be  awarded  a  periodic  increase  corresponding  to  the  median  of  the 
assessments at the user company. 

  As  of  01  July  2023,  all  successive  temporary  employment  contracts  with  the 

same user undertaking must be concluded for at least four weeks. 

Apart from that, as of 01 January 2023, fixed end-of-year bonuses, defined as all income 
components that are paid annually or otherwise periodically on a recurring basis (i.e. 
fixed end-of-year payments), such as a 13th month, end-of-year bonus and Christmas 
bonus, will become part of the pay applicable at the user undertaking (inlenersbeloning) 
(Article 16 the Collective Labour Agreement for Temporary Agency Workers 2021-2023 
(ABU Cao voor Uitzendkrachten 2021-2023)). Allocation takes place in accordance with 
the regulations applicable at the user undertaking, such as when the payment is made 
and the conditions applicable to the allocation.  

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Norway 

Summary  

Restrictions on hiring workers from temporary work agencies have been introduced.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Right to full-time employment 

The Working Environment Act (LOV-2005-06-17-62) has been amended with a ‘right’ to 
full-time employment (LOV-2022-12-09-88). Amendments have also been made to the 
Working Environment Act section 14-3 on preferential rights for part-time employees. 
These changes were described in the November 2022 Flash Report. 

The amendments entered into force 01 January 2023.  

1.2  Temporary agency work  

Hiring workers from temporary work agencies has, according to the main regulation in 
the Working Environment Act (LOV-2005-06-17-62), been equalised with the right to 
conclude  temporary  employment  contracts.  This  implies  that  it  is  possible  to  hire 
employees from temporary work agencies to perform work of a temporary nature or to 
temporarily replace a worker or workers, cf. Sections 14-9 and 14-12 of the Working 
Environment Act. Changes have now been introduced to restrict the possibility of hiring 
employees from temporary work agencies (LOV-2022-12-20-99). The most important 
changes can be summarised as follows:  

Firstly,  the  possibility  of  hiring  employees  from  temporary  work  agencies  to  perform 
work  of  a  temporary  nature  has  been  abolished,  cf.  the  Working  Environment  Act 
Section 14-12 (1) and the Act on State Employees Section 12 (LOV-2017-06-16-67).  

However, two exceptions have been stipulated in separate regulations for (1) hiring of 
health care personnel to ensure the proper operation of health care and care services, 
and (2) hiring of employees with special skills who will perform advisory and consulting 
services in a clearly defined project.  

Secondly, no workers from temporary work agencies can be hired for construction work 
on construction sites in Oslo, Viken and formerly Vestfold. This prohibition is set out in 
separate regulations.  

The right to permanent employment has been expanded, i.e. temporary agency workers 
have the right to permanent employment after three consecutive years, regardless of 
the reason for which they were hired. 

A  statutory  definition  of  hiring  has  been  introduced  in  the  Working  Environment  Act, 
clarifying the boundary between hiring and contracting.   

The  new  restrictions  will  enter  into  force  on  01  April  2023  (FOR-2022-12-20-2300), 
however, with specific transitional rules (FOR-2022-12-20-2301). 

1.3  Collective bargaining 

Norway  has  a  system  of  general  application  of  collective  agreements  (allmenn-
gjøringsordning), cf. The General Application of Collective Agreements Act (LOV-1993-
06-04-58).  An  autonomous  government  entity,  the  Tariff  Board  (Tariffnemnda),  has 
authority—if  certain  conditions  are  met—to  decide  that  a  nationwide  collective 
agreement shall apply in full or in part to all employees who perform work of the type 
specified  in  the  agreement  within  an  industry  or  part  of  an  industry.  Collective 

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agreements  have  general  applicability  in  several  industries,  and  the  Tariff  Board  has 
decided  that  these  regulations  continue  to  have  general  applicability.  Collective 
agreements have general applicability in the following sectors:  

  Freight transport on road, cf. FOR-2022-12-09-2171.  

  Passenger transport by touring car, cf. FOR-2022-12-09-2172. 

  Fishing companies, cf. FOR-2022-12-09-2154.  

  Accommodation, restaurants and catering, cf. FOR-2022-12-09-2156.   

  Agriculture, cf. FOR-2022-12-09-2154.   

  Shipbuilding industry, cf. FOR-2022-12-09-2170.   

  Cleaning companies, cf. FOR-2022-12-09-2169.   

  Electrophage, cf. FOR-2022-12-05-2152.   

Construction sites, cf. FOR-2022-12-09-2155. 

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Directive 2008/104/EC is implemented in the Working Environment Act (LOV-2005-06-
17-62), and the principle of equal treatment can be found in Section 14-12 a of the Act. 
Para 3 of this provision gives the Ministry authority to decide in regulations whether and 
to what extent the provisions on equal treatment may be derogated from in collective 
agreements.  Such  regulations  are  laid  down  by  the  Ministry  (FOR-2015-07-06-874). 
Derogation requires the temporary work agency to be bound by a collective agreement 
entered  into  with  a  trade  union  that  is  entitled  to  submit  so-called  recommendations 
(innstillingsrett) pursuant to the Labour Dispute Act 2012 Section 39 (LOV-2012-01-27-
9).  A  trade  union  must  have  at  least  10 000  members  to  be  entitled  to  submit 
recommendations. Both the Working Environment Act Section 14-12 a (3) and Section 
1  of  the  regulations  state  that  the  “general  worker  protection  provisions  must  be 
respected in all cases”. These provisions implement Article 5 (3) of the Directive.  

The CJEU’s judgment does not raise any  specific concerns. There are no decisions by 
Norwegian courts on the abovementioned provisions, and there is no reason to believe 
that the CJEU’s interpretation of Article 5 (3) of the Directive will pose any problems in 
Norway.  According  to  the  general  principles  of  Norwegian  law,  the  provisions  in  the 
Working Environment Act Section 14-12 a (3) and Section 1 of the regulations must be 
interpreted in line with the CJEU’s judgment.  

Neither the Working Environment Act nor the regulations set down further conditions or 
criteria designed to respect the overall protection of temporary agency workers when 
the principle of equal treatment is deviated in a collective agreement in accordance with 
the  abovementioned  provisions.  This,  however,  is  not  required,  as  concluded  by  the 
CJEU in case C-311/21. 

According to current law, collective agreements that authorise differences in treatment 
for  basic  working  and  employment  conditions  to  the  detriment  of  temporary  agency 
workers,  are  amenable  to  effective  judicial  review  to  determine  whether  the  social 
partners have complied with their obligation to respect the  overall protection of  such 
workers.  In  general,  courts  will  be  able  to  review  whether  a  provision  in  a  collective 

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agreement  is  lawful.  A  party  to  the  collective  agreement  can  bring  a  claim  on  the 
lawfulness of the agreement before the Labour Court, while a temporary work agency, 
which is not a party to  the collective agreement, or a temporary  agency worker, can 
bring a claim before the ordinary courts.   

4 

Other Relevant Information 

Nothing to report.  

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Poland 

Summary  

The amendment to the Labour Code on teleworking has been enacted.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Teleworking 

On 01 December 2022, the amendment to the Labour Code on remote work was enacted 
by the Sejm (lower chamber of Parliament), and was approved by the Senate (higher 
chamber of Parliament) on 16 December 2022, with some minor modifications.  

Remote  work  is  currently  regulated  in  the  anti-COVID  shield  and  refers  to  remote 
working  during  the  pandemic.  The  purpose  of  the  amendment  is  to  introduce  a 
permanent  legal  framework  for  remote  working  (with  substantial  amendments 
compared  to  the  anti-COVID  regulations),  and  to  replace  the  current  regulations  on 
teleworking with the regulations on remote working. 

The draft and information on the legislative process can be found here. The draft was 
extensively introduced and analysed in the November 2022 Flash Report, section 1.1. 

The following aspects on the legislative process should be highlighted: 

 

 

the  employer  will  be  required  to  accept  requests  for  remote  working  by 
employees taking care of a child up to the age of 10 years (instead of up to the 
age of 4 years, as had been previously proposed), unless such approval is not 
possible due to the establishment’s organisational requirements or the type  of 
work being performed. A rejection must be justified (Article 6719 § 6 LC); 

the employer will be required to accept requests by employees with disabilities 
for remote working, and not only requests by employees who are taking care of 
a family member with disabilities (as had been previously proposed). Approval 
of the request depends on the establishment’s organisational requirements and 
the type of work being performed; any rejection must be justified. It should also 
be mentioned that the employer will in principle be required to approve requests 
for remote working submitted by a pregnant employee (Article 6719 § 6 LC); 

 

remote work can be performed on an ad hoc basis (i.e. without ‘regular’ statutory 
requirements),  upon  the  employee’s  request,  not  more  than  30  days  in  a 
calendar year. 

Previously,  it  had  been  proposed  that  ad  hoc  teleworking  could not  be  performed  for 
more than 24 days per calendar year. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement  

In Poland, Directive 2004/108 has been implemented by the Law of 09 July 2003 on the 
(ustawa  o  zatrudnianiu  pracowników 
Employment  of  Temporary  Workers 

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tymczasowych),  the  consolidated  text  is  available  here:  Journal  of  Laws  2019,  item 
1563. 

Article 15 item 1 of the Law provides that while performing work for the benefit of the 
user undertaking, a temporary agency worker may not be treated less favourably with 
regard  to  working  conditions  and  other  employment  conditions  than  the  user 
undertaking's employees employed in the same or a similar position. According to Article 
15 item 2 of the Law, with regard to access to training organised by the user undertaking 
to improve the qualifications of employees, the provision of section 1 does not apply to 
temporary  agency  workers  who  perform  work  for  the  user  undertaking  for  a  period 
shorter than six weeks. Thus, the statute in principle requires the same protection to be 
afforded  both  to  the  user  undertaking’s  permanent  employees  and  to  temporary 
workers. 

Polish  labour  law  is  mainly  statutory  law,  and  collective  labour  agreements  play  a 
secondary  role.  There  are  no  collective  labour  agreements  that  would  transpose 
Directive 2008/104 or that would deviate from statutory provisions on temporary work. 
There are no restrictions or prohibitions to temporary agency work based on collective 
labour  agreements.  Therefore,  the  dispute  at  stake  would  not  arise  in  Poland,  since 
there are no collective labour agreements that would introduce collective arrangements 
on  the  employment  conditions  of  temporary  workers,  while  respecting  the  overall 
protection  of  temporary  workers.  The  protection  of  temporary  workers  is  in  practice 
subject to statutory regulations only.  

Article 7 item 1 of the Law provides that a temporary work agency employs temporary 
agency  workers  on  the  basis  of  an  employment  contract  for  a  fixed  period.  In  other 
words, according to the statute, the fixed-term employment contract is the basis of the 
relationship between the temporary work agency and the temporary worker (and civil 
law  contracts  for  the  provision  of  services).  There  is  no  option  to  conclude  an  open-
ended employment contract with a temporary worker. There is no room to evaluate the 
overall protection of temporary workers from the perspective of concluding a permanent 
employment contract.  

The CJEU’s ruling does not have any implications for the compatibility of Polish law with 
Directive 2004/108, and there is no need to modify national regulations. 

4 

Other Relevant Information 

Nothing to report. 

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Portugal 

Summary  

(I) A pilot programme for evaluating and testing the effects of the reduction of the 
work week to four days has been approved. 

(II) A ruling of the Appeal Court of Lisbon dealt with the transfer of an economic unit.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Retirement pension 

Ordinance  No.  292/2022,  of  9  December  2022,  establishes  that  the  normal  age  for 
access  to  an  old-age  retirement  pension  of  the  Portuguese  general  social  security 
system will increase to 66 years and 4 months in 2024.   

1.2  Four-day week 

Ordinance No. 301/2022, of 20 December 2022, approves the development of a pilot 
programme,  the  ‘Four-day  Week’,  which  aims  to  experimentally  adopt,  by  employers 
and the respective employees, a reduction of the work week to four days.  

The  responsibility  for  implementing  and  managing  the  pilot  programme  lies  with  the 
Employment  and  Professional  Training  Institute  (Instituto  de  Emprego  e  Formação 
Profissional).  

This pilot programme aims to analyse and test a new working organisation model based 
on the following specific objectives: (i) assess new forms of organisation and balance of 
working  times,  which  allows  for  the  protection  of  the  employees’  interests,  reduces 
operational  costs  of  companies  and  environmental  costs;  (ii)  assess  the  impact  the 
reduction in working time, without a loss of salary, has on the quality of life of employees 
and their families; (iii) assess the effects on productivity, quality of services provided 
and absenteeism.  

This  pilot  programme  will  begin  during  2023  and  consists  of  evaluating  the 
implementation of the work week of four days, with the corresponding reduction in the 
number of working hours and without reducing the employee’s remuneration. Employers 
and employees may voluntarily join this pilot programme.   

An evaluation will be carried out before, during and after the implementation of the pilot 
programme  based  on  indicators  (i)  related  to  the  company,  such  as  productivity  and 
intermediate costs, and (ii) related to employees, including health and well-being.  

1.3   Minimum wage 

On 22 December 2022, Decree-law No. 85-A/2022 was published, which approves the 
national  minimum  wage  for  the  year  2023.  According  to  the  Decree,  the  national 
minimum wage applicable in the Portuguese mainland territory will be EUR 760 as of 01 
January 2023. 

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2 

Court Rulings 

2.1  Transfer of undertakings 

Ruling of the Appeal Court of Lisbon, No. 9810/20.1T8SNT.L1-4, 15 December 2022. 

In this judgment, the Appeal Court of Lisbon ruled that the succession of companies in 
the  provision  of  surveillance  services  in  a  shopping  centre,  accompanied  by  the 
maintenance of essential equipment for the execution of the contracted service and the 
integration of some employees of the previous provider, should be deemed as a transfer 
of  an  economic  unit  for  the  purposes  of  Article  285  of  Portuguese  Labour  Code  and 
Article  1  (1)  of  Directive  2001/23/EC  of  12  March  2001.  In  the  given  situation,  the 
following facts were considered relevant:  

(i) 

(ii) 

(iii) 

Surveillance services continued to be provided in the same location and for 
the same customer, without any relevant time gap; 

The  specific  surveillance  and  human  security  services  contracted  by  the 
shopping centre were maintained; 

For  the  provision  of  services,  the  new  provider  used  the  same  goods  and 
equipment belonging to the customer which the previous provider had used 
(e.g. a chair, a desk, key ring, a landline telephone, a complete CCTV system, 
consisting of a computer, monitors and cameras for capturing images, and a 
fire control centre); 

(iv) 

Some of the previous provider company’s employees entered into fixed-term 
employment  contracts  with  the  new  provider,  continuing  to  render  the 
referred surveillance services in the same premises.   

Pursuant  to  Article  286-A  of  Portuguese  Labour  Code,  employees  have  the  right  to 
oppose the transfer of the position of employer in their employment contracts when it 
may  cause  them  harmful  damages,  namely  due  to  the  acquirer’s  lack  of  solvency  or 
difficult financial situation, or even if the work organisation policy of the acquirer does 
not seem trustworthy. In this judgment, the Appeal Court considered that the opposition 
to  the  transfer  was  valid  and  founded  as  the  new  surveillance  service  provider  had 
refused to recognise the employees’ rights arising from their employment contract with 
the transferor, imposing on them the conclusion of a new fixed-term contract. According 
to  the  court,  in  that  case,  the  employees  may  face  the  real  possibility  of  losing  job 
stability and the rights and guarantees that until then had been provided to them, which 
implies ‘serious damage’ and justifies that the employees do not have confidence in the 
work organisation policies of the transferee. Based on this argument, the Appeal Court 
ruled that in the present situation, the exercise of the opposition right by the plaintiff 
was valid and, therefore, his employment contract was not transferred to the transferee, 
remaining at the transferor’s service. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

This  case  concerned  the  interpretation  of  Article  5  of  Directive  2008/104/EC  of  the 
European  Parliament  and  of  the  Council  of  19  November  2008  on  temporary  agency 
work. This provision foresees, in para 1, that  

“the  basic  working  and  employment  conditions  of  temporary  agency  workers 
shall be, for the duration of their assignment at a user undertaking, at least those 
that  would  apply  if  they  have  been  recruited  directly  by  that  undertaking  to 
occupy the same job”. 

However, para 3 of said Article 5 establishes that  

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“after  consulting  the  social  partners,  Member  States  may  give  them,  at  the 
appropriate level and subject to the conditions laid down by the Member States, 
the  option  of  upholding  or  concluding  collective  agreements  which,  while 
respecting  the  overall  protection  of  temporary  agency  workers,  may  establish 
arrangements concerning the working and employment conditions of temporary 
agency workers which may differ from those referred to in paragraph 1”.  

In the present case, a temporary agency worker employed by a temporary work agency 
(TimePartner  Personalmanagement  GmbH)  brought  a  claim  before  a  German  labour 
court requesting additional pay equivalent to the difference between the remuneration 
set forth in the collective agreements applicable to temporary agency workers and the 
remuneration due to comparable workers of the user undertaking, in accordance with 
the collective agreement for retail workers in the Land of Bavaria which applies to them.  

The  CJEU  ruled  that  Article  5  (3)  of  Directive  2008/104/EC  must  be  interpreted  as 
meaning that such provision, by its  reference to the  concept  of “overall protection  of 
temporary agency workers”, does not require account to be taken of a level of protection 
specific to temporary agency workers that is greater than that laid down for workers in 
general by provisions on basic working and employment conditions under national and 
EU law. However, the CJEU also stated that where the social partners, by means of a 
collective agreement, authorise differences in treatment with regard to basic working 
and  employment  conditions  to  the  detriment  of  temporary  agency  workers,  that 
collective agreement must, in order to respect the overall protection of the temporary 
agency  workers  concerned,  afford  them  advantages  in  terms  of  basic  working  and 
employment conditions which are such as to compensate for the difference in treatment 
they suffer.  

Under Portuguese law, during an assignment, the temporary agency worker is subject 
to rules applicable to the user undertaking in relation to the way, place, duration of the 
work and suspension of the employment contract, safety and health at work and access 
to social equipment (Article 185 (2) of Labour Code). In addition, the temporary agency 
worker is entitled to the minimum remuneration set forth in the collective agreement 
applicable to the temporary work agency or to the user undertaking that corresponds 
to the respective functions, or to the remuneration practiced by the latter for equal work 
or  of  equal  value,  whichever  is  more  favourable  (Article  185  (5)  of  Labour  Code). 
Portuguese law does not give the social partners the possibility provided for in para 3 
of Article 5  of Directive 2008/104/EC and therefore, this recent CJEU  ruling does not 
seem to have any significative implications for Portugal. 

4 

Other Relevant Information 

4.1  Future amendments to labour law 

The Proposal of Law No. 15/XV/1, containing several changes to the labour legislation, 
was presented to the Portuguese Parliament by the government on 06 June 2022 (see 
July 2022 Flash Report). The legislative procedure is still ongoing, and such proposal 
will likely be voted (and approved) by Parliament in coming months. 

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Romania 

Summary  

(I)  The  new  Social  Dialogue  Law  has  been  adopted,  expanding  the  possibility  of 
collective bargaining and the generation of collective conflicts. 

(II)  Romania  has  transposed  Directive  2019/1937,  ensuring  the  protection  of 
whistleblowers in labour relations. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Law on Social Dialogue 

The new Law on Social Dialogue, Law 367/2022 (see  Official Gazette of Romania No. 
1238 of 22 December 2022), essentially changed collective bargaining procedures, the 
representativeness of social partners, and the regulation of collective labour disputes. 
As  an  expression  of  Romania's  National  Recovery  and  Resilience  Plan,  the  new  law 
repeals Social Dialogue Law No. 62/2011, which, to a large extent, has obstructed social 
dialogue in Romania over the last 10 years. The new law mainly provides: 

a)  Extension of the right to information/consultation. Henceforth, the employer not 
only has the possibility but the obligation to invite employee representatives to 
the meetings of the board of directors, when issues of a professional and social 
interest  with  an  impact  on  the  workers  are  discussed.  The  procedure  for 
informing  and  consulting  employees  about  the  development  of  the  company’s 
economic situation  has been regulated, as well as the obligation to organise a 
public information session on workers' rights at least once a year in undertakings 
where trade unions are not established. 

b)  Unions  will  be  able  to  organise  self-employed  and  unemployed  workers.  The 
latter  will  not  be  taken  into  account  when  determining  the  number  of  union 
members based on which a union’s representativeness is established. To form a 
union, a number of at least 10 workers from the same undertaking or at least 20 
workers from different undertakings from the same sector is required (until now, 
at  least  15  employees  from  the  same  undertaking  were  required  to  form  a 
union).  The  thresholds  for  representativeness  have  been  reduced;  notably,  at 
the  unit  level,  a  trade  union  that  has  35  per  cent  of  the  total  number  of 
employees as members (compared to 50 per cent+1, as provided until now) has 
representativeness. 

c)  Collective  bargaining  can  also  take  place  at  the  national  level,  which  was  not 
possible until now. Collective bargaining is mandatory in any undertaking with 
more than 10 employees (compared to 21, as provided until now). Besides, the 
new law aims to strengthen collective bargaining at the sectoral level and defines 
new sectors called ‘collective bargaining sectors’. 

Collective  labour  disputes  may  arise  not  only  during  the  negotiation  of  the  collective 
labour agreement but also—under certain conditions—in case of rejection, collectively, 
of individual rights provided by the applicable collective labour agreements. Employees 
can  also  initiate  a  collective  conflict  if  employers  refuse  to  adhere  to  the  sectoral 
collective labour agreement. Several procedural aspects  relating to strikes have been 
modified,  including  the  establishment  of  a  Strike  Committee.  In  addition,  a  “strike 
against the social and economic policy of the Government” may be initiated as a result 
of the social or economic policies that have led to the reduction of some rights provided 
by  the  applicable  collective  labour  agreements.  The  strike  shall  take  place  on  the 
premises  of  the  company.  Along  with  grounds  that  make  a  strike  illegal,  ‘grounds  of 
non-compliance’  have  also  been  introduced,  if  legal  procedural  aspects  have  been 
omitted. 

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1.2  Whistleblowers 

Law No. 361/2022 on the protection of whistleblowers in the public interest (see Official 
Gazette of Romania No. 1218 of 19 December 2022) transposed Directive 2019/1937 
on the protection of persons who report breaches of Union law into Romanian law. The 
new law replaces the previous regulations, mainly provided for in Law No. 571/2004 on 
the protection of staff working for public authorities, public institutions and other units, 
who report violations of the law. The repealed law included certain protective measures, 
but it was applicable exclusively in the public sector. 

1.3  Minimum wage 

Government Decision No. 1447/2022 for establishing the national guaranteed minimum 
gross  basic  salary  (see  Official  Gazette  of  Romania  No.  1186  of  09  December  2022) 
provides for a minimum salary of RON 3 000 per month for the year 2023. This is a 17.6 
per cent increase over the 2022 minimum salary. 

According to the Ministry of Labour, the establishment of the minimum wage for 2023 
was  agreed  based  on  negotiations  and  the  joint  agreement  between  the  government 
and  representatives  of  employers  and  unions  during  the  meeting  of  the  Tripartite 
National  Council  for  Social  Dialogue.  Over  2  million  employees  will  benefit  from  the 
increase in the minimum basic salary in 2023. 

Emergency Government Ordinance No. 168/2022 (see Official Gazette of Romania No. 
1186 of 09 December 2022), provides that in the case of full-time employees who earn 
minimum wage, part of their salary (i.e. RON 200) will be non-taxable and exempt from 
social security contributions. The  Ordinance also provides that the minimum salary  in 
the construction sector will be RON 4 000 per month in 2023 (compared to RON 3 000 
in 2022).  

1.4  Employment contract model 

By Order of the Ministry of Labour No. 2171/2022 (see Official Gazette of Romania No. 
1180  of  09  December  2022),  a  new  framework  model  of  the  individual  employment 
contract was approved. The model adopts the new elements introduced in the Labour 
Code by Law No. 283/2022 (see also October 2022 Flash Report), transposing Directive 
(EU)  2019/1152  on  the  transparency  and  predictability  of  working  conditions  in  the 
European Union. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Directive 2008/104/EC on Temporary Agency Work has been transposed into Romanian 
legislation  mainly  through  the  Labour  Code  (Articles  88-102,  Law  No.  53/2003, 
republished in the Official Gazette of Romania No. 345 of 18 May 2011) and Government 
Decision No. 1256/2011 on the operating conditions and the procedure for authorising 
temporary agency work (see Official Gazette of Romania No. 5 of 04 January 2012). 

Romanian legislation does not expressly address derogations allowed in Article 5 (3). 
There  is  no  provision  for  the  option  of  upholding  or  concluding  collective  agreements 

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which, while respecting the overall protection of temporary agency workers, derogate 
from the principle of equal treatment. The only express provision is that contained in 
Article 11 (3) of Government Decision No. 1256/2011, which provides that the working 
conditions established by the collective labour  agreement applicable at the user level 
are  directly  applicable  to  temporary  agency  workers  during  their  temporary  work 
assignment.  

Even  if  there  were  a  collective  labour  agreement  at  the  level  of  the  temporary  work 
agency  (which  is  rare  in  practice),  the  provisions  of  the  collective  labour  agreement 
applicable  at  the  user  undertaking  would,  if  more  favourable  apply  to  the  temporary 
agency worker during his/her assignment. 

In  the  absence  of  any  derogations  from  the  principle  of  equal  treatment,  there  is  no 
question of compensatory advantages and their evaluation. 

The regulation of work through a temporary work agency has not advanced, remaining 
at  an  embryonic  stage  since  2011;  as  a  result,  in  the  current  context,  it  cannot  be 
expected that the CJEU’s decision in case C-311/21 will produce any immediate effect. 

4 

Other Relevant Information 

Nothing to report. 

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Slovakia 

Summary  

A new amendment to the Labour Code has modified several articles concerning the 
determination of the amount of certain wage supplements. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Minimum wage 

On 07 December 2022, the National Council of the Slovak Republic adopted a proposal 
of  two  opposition  MPs  to  amend  the  Labour  Code,  as  amended  (Act  No.  311/2001 
Collection of Laws – ‘Coll.’). 

According to the explanatory report to the draft Act in Article I, a change to the current 
wording of Article 120 on the determination of the minimum wage and several Articles 
on the determination of the amount of certain wage supplements is proposed. In 2020, 
the government enforced the wording of the provisions that were now to be changed, 
leading to a deterioration in the remuneration of workers  earning minimum wage, as 
well  as  all  workers  receiving  supplements  to  their  wages,  especially  with  regard  to 
supplements for working non-standard working hours, or for emergency work outside 
the  workplace.  Deterioration  of  remuneration  does  not  only  affect  permanent 
employees, but also those who work under an agreement to perform work outside the 
employment relationship. 

The  deterioration  of  remuneration  is  linked  to  changes  in  the  determination  of  the 
amount of additional payments: instead of tying  remuneration to the development of 
the  minimum  wage,  the  legislator  has  established  fixed  amounts  that  have  not  been 
modified since 2020, while the minimum wage has been rising. Currently, however, the 
government’s  solution  from  2020  is  unacceptable  and  substantially  harms  working 
people and reduces their incomes. 

Ultimately, the adjustment of the degree of work difficulty was dropped from the MPs’ 
proposal. Such adjustments are currently being increased by the same amount as the 
basic  minimum  wage.  According  to  the  original  draft  of  the  amendment,  they  should 
again  be  counted  as  a  multiple.  In  practice,  for  example,  the  second  level  would  be 
calculated as 1.2 times the minimum wage, and the last wage earned up to twice it’s 
amount. Yet this is missing in the approved proposal. 

In the original proposal, which was not approved, the new proposed wording of Article 
120 paragraph 4 of the Labour Code should have been: 

“The rate of minimum wage entitlement for the relevant degree is a multiple of 
the hourly minimum wage for the established weekly working time of 40 hours 
or the minimum wage in euros per month, for an employee who earns a monthly 
wage,  established  by  a  special  regulation,  and  the  coefficient  of  the  minimum 
wage.“ 

In other words, the original text of Article 120 para 4 still applies: 

“The  amount  of  the  minimum  wage  entitlement  of  an  employee  who  earns    a 
monthly wage for the relevant grade for the relevant calendar year is the sum of 
the difference between the amount of the monthly minimum wage determined 
for the relevant  calendar year and the amount of the monthly minimum wage 
determined  for  the  year  2020  and  the  product  of  the  amount  of  the  monthly 
minimum wage determined for the year 2020 and the coefficient of the minimum 
wage. The amount of the minimum wage entitlement for the respective grade for 
the  respective  calendar  year  for  each  hour  worked  by  the  employee  at  the 

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prescribed  weekly  working  time  of  40  hours  is  1/174  of  the  amount  of  the 
minimum wage entitlement according to the first sentence.” 

The degree and minimum wage coefficient are the same as in the proposed new text. 

These are the adopted changes (new wording): 

Wage surcharge for work on Saturday (Article 122a paras 1-4) 

“An  employee  shall  be  entitled  to  a  wage  surcharge,  in  addition  to  the  wage 
earned, for each hour worked on Saturday in the amount of at least 50 per cent 
of minimum wage in EUR per hour pursuant to a special regulation (paragraph 
1).” 

Wage surcharge for work on Sunday (Article 122b paras 1-4) 

“An  employee  shall  be  entitled  to  a  wage  surcharge,  in  addition  to  the  wage 
earned, for each hour worked on Sunday at least in the amount of 100 per cent 
of minimum wage in EUR per hour pursuant to a special regulation (para 1).” 

Wage surcharge for night work (Article 123 paras 1-3) 

“For the performance of night work, in addition to the wage earned, an employee 
shall, for each hour of night work, be entitled to a wage surcharge in the amount 
of at least 40 per cent of the minimum wage in euros per hour according to a 
special regulation, and if it is an employee performing  hazardous work, he/she 
is  entitled  to  a  wage  surcharge  in  the  amount  of  at  least  50  per  cent  of  the 
minimum wage in euros per hour according to a special regulation (para 1).” 

Wage  compensation  for  the  performance  of  arduous  work  (Article  124 
paragraphs 1-5) 

According  to  Article  124  para  1  of  the  LC,  the  employee  is  entitled  to  wage 
compensation for the performance of arduous work when performing the work 
activities listed in para 2, if those activities have been classified by the relevant 
public health authority as belonging to category 3 or 4 as specified in a special 
regulation, and during their performance of work, the intensity of the effects of 
the  work  environment  despite  the  technical,  organisational  and  specific 
protective  and  preventive  measures  implemented  in  accordance  with  special 
regulations require the employee to use personal protective work equipment to 
reduce the health risk. 

Article 124 para 3: 

“For each hour of work performed according to para 1, in addition to the earned 
wage,  the  employee  is  entitled  to  wage  compensation  for  the  performance  of 
arduous  work  of  at  least  20  per  cent  of  the  minimum  wage  in  euros  per  hour 
according to a special regulation.” 

Agreements on work performed outside the employment relationship (Article 223 
para 2, 4th Sentence) 

“Employees  who  perform  work  based  on  agreements  to  perform  work  outside 
the employment relationship are entitled to the agreed remuneration increased 
by at least the amount of minimum wage per hour for each hour worked  on a 
holiday pursuant to a special regulation.” (Former text: “Employees who perform 
work  based  on  agreements  ‘on  work  performed  outside  the  employment 
relationship’ are entitled to the agreed remuneration for each hour of work on a 
holiday, with an increase in the agreed remuneration of at least EUR 3.58”). 

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The Act will enter into force on 01 June 2023.  

This Act has not yet been promulgated in the Collection of Laws (‘Coll.’). 

The approval of this amendment to the Labour Code has resulted in intense protests by 
employers. Employers have criticised Parliament for bypassing the standard legislative 
process, which includes a comment procedure and expert discussion. 

On  Monday,  12  December  2022,  the  employers’  representatives  left  the  tripartite 
meeting of the Economic and Social Council of the Slovak Republic. The Association of 
Employers’ Unions and Associations, the Republican Union of Employers, the Association 
of Industrial Unions and Transport and the Association of Cities and Towns of Slovakia 
explained in a joint statement why they left the negotiations of the Social and Economic 
Council. 

This  amendment  was  approved  despite  the  strong  disagreement  of  all  employers’ 
tripartite organisations without a relevant assessment of the effects and impacts on the 
business environment. 

2 

Court Rulings 

2.1  Dependent work 

Supreme Court, No. 2 Cdo 323/2020, 28 July 2022 

Dependent work (Article 1 paragraph 2 of the Labour Code) can only be performed in 
an  employment  relationship  according  to  the  Labour  Code.  Negotiating  another  legal 
relationship  for  the  performance  of  dependent  work  is  invalid  (Article  39  of  the  Civil 
Code).  

According to Article 39 of the Civil Code, a legal act is invalid if its content or purpose 
contradicts the law, circumvents it or infringe good morals. 

2.2  Organisational change 

Supreme Court, No. 4 Cdo 139/2021, 24 March 2022 

The  Commercial  Code  is  not  in  relation  to  the  Labour  Code  in  a  relationship  of 
subsidiarity,  which  would  allow  the  use  of  Article  134  of  the  Commercial  Code 
(commercial management) to assess the substantive legal conditions for the validity of 
termination of employment pursuant to Article 63 paragraph 1 letter b) of the Labour 
Code (termination due to organizational changes). The person(s) who is entitled to the 
legal act of termination on behalf of the employer (Article 9 paragraph 1 of the Labour 
Code)  is  authorized  to  decide  on  such  a  question  with  relevance  for  employment 
relations. 

See here for a collection of opinions of the Supreme Court and decisions of the courts 
of the Slovak Republic No. 4/2022. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Temporary assignments and agency employment are primarily regulated in legislation. 
Act No. 311/2001 Coll. as amended regulates temporary assignments, the relationship 
between  the  employer  and  the  user  undertaking,  between  the  employee,  his/her 
employer  and  the  user  undertaking,  and  specifies  the  duties  of  employees  during 
temporary assignments (Articles 58, 58a, 58b).  

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The  Slovak  Republic  does  not  provide  for  an  exception  to  the  principle  of  equal 
treatment,  although  Article  5  (3)  of  the  Directive  offers  some  flexibility.  Collective 
agreements must comply with the relevant legislation. 

The Slovak legislation also does not provide for exceptions to the overall protection of 
temporary  agency  workers.  Compliance  with  the  principle  of  equal  treatment  can  be 
assessed by comparing the working conditions of temporary agency workers with those 
of a comparable employee at the user undertaking. 

If the working conditions of temporary workers are covered by the user undertaking’s 
collective  agreement,  they  may  not  be  less  favourable  than  those  of  the  user 
undertaking’s regular employees, including salary conditions. The Labour Code explicitly 
provides  for  this  duty  (Article  58,  para  9,  11  Labour  Code).  A  collective  agreement 
cannot  provide  for  less  favourable  working  conditions  for  temporary  agency  workers. 
Such a provision would be in breach of the law and would be invalid. 

According  to  Article  58  para  9  of  the  Labour  Code,  the  basic  working  conditions  of 
temporary agency workers must be at least equal to those of a comparable employee. 
This also applies to the collectively agreed working conditions of the temporary workers. 

For  the  purposes  of  this  Act,  a  comparable  employee  shall  be  an  employee  who  has 
concluded  an  employment  relationship  for  an  indefinite  period  and  a  fixed  weekly 
working time with the same employer or an employer pursuant to Sec. 58, who performs 
or  would  perform  the  same  type  of  work  or  similar  type  of  work,  taking  into 
consideration qualifications and professional experience (Article 40 para 9 of the LC). 

According to Article 231 para 1 of the Labour Code, a trade union body shall conclude a 
collective  agreement  with  an  employer,  which  shall  regulate  the  working  conditions 
including wage conditions and conditions of employment, the relationship between the 
employer and employees, the relationship between employers or their organisations and 
one or more employees’ organisations on more favourable terms than those stipulated 
in this Act or other labour-law regulations, unless this Act or other labour law regulations 
explicitly  prohibit  this  or  if  from  their  provisions  it  does  not  follow  that  they  cannot 
derogate from them. 

There  is  no  special  legal  regulation  on  temporary  agency  workers  and  the  collective 
bargaining  or  collective  agreements.  In  each  particular  case,  it  will  be  necessary  to 
proceed according to the cited provision of Article 231 para 1 of the Labour Code. 

According to Article 58a para 1 of the Labour  Code, the employer or temporary work 
agency  may  agree  with  the  user  undertaking  on  the  temporary  assignment  of  an 
employee  in  an  employment  relationship  for  the  performance  of  work.  According  to 
paragraph  2  letter  f/,  the  temporary  assignment  agreement  concluded  between  the 
employer or temporary work agency and the user undertaking shall include the working 
conditions  (including  wage  conditions  and  employment  conditions  for  temporarily 
assigned employees), which shall be at least as favourable as those for a comparable 
employee employed directly by the user undertaking. 

According  to  Article  4  para  2  of  Act  No.  2/1991  Coll.  on  Collective  Bargaining,  as 
amended, the collective agreement shall be invalid if it:  

 

 

contravenes generally binding legal regulations; 

regulates provisions for temporary employees that are less favourable than those 
of the collective agreement of a higher degree. 

4 

Other Relevant Information 

Nothing to report. 

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Slovenia 

Summary  

(I) Parts of the Work-life Balance Directive have been transposed into Slovenian law.  

(II)  The  Act  Regulating  the  Working  Time  and  Compulsory  Rest  Periods  of  Mobile 
Workers and on Recording Equipment in Road Transport has been amended. 

(III)  The  Constitutional  Court  has  decided  that  the  upper  limit  to  the  right  to  paid 
annual leave for public employees was unconstitutional.  

_____________________________________________________________________ 

1 

National Legislation 

1.1  Work-life balance  

The  Act  amending  the  Parental  Protection  and  Family  Benefits  Act  (adopted  by  the 
National Assembly in November 2022, see FR 11/2022 under 1.1) was published in the 
Official Journal (‘Zakon o spremembah in dopolnitvah Zakona o starševskem varstvu in 
družinskih  prejemkih  (ZSDP-1F)’,  Official  Journal  (OJ  RS)  No  153/22,  6.  12.  2022, 
p.12470-12472).  

It transposes an important part of the EU Directive 2019/1158, i.e. the Work-life Balance 
Directive into Slovenian law. According to Article 1 of the ZSDP-1F, this Act transposes 
the WLB Directive as regards:  

  paternity leave,  

  parental leave,  

  payment/wage compensation during such leaves, and  

 

flexible working arrangements. 

The ZSDP-1F entered into force on 21 December 2022 (15 days after its publication), 
however, it will only start to apply as of 1 April 2023 (Art 30 of the ZSDP-1F). 

The  most  important  changes  concerning  the  transposition  of  the  WLB  Directive  are 
presented  below  (with  reference  to  the  Articles  of  the  consolidated  version  of  the 
Parental Protection and Family Benefits Act after the last amendments by the ZSDP-1F, 
‘Zakon o starševskem varstvu in družinskih prejemkih (ZSDP-1)’, OJ RS No. 26/14 et 
subseq.). 

Paternity leave 

According to Article 25 of the ZSDP-1, as amended by ZSDP-1F, fathers or equivalent 
second parents have the right to paternity leave of 15 (calendar) days; in case of twins 
or  more,  paternity  leave  is  extended  for  the  second  and  subsequent  child  by  an 
additional 10 days. This right is conferred irrespective of the worker’s marital or family 
status and not just to fathers but also to the equivalent second parent.  

The paternity leave is a non-transferrable right. It can be used as a full- or part-time 
absence from work, in a continuous block of 15 days, within the first three months after 
the child’s birth.  

Parental leave 

Each parent is (will be – after 1 April 2023) entitled to parental leave of 160 (calendar) 
days (before the ZSDP-1F’s amendments: 130 days each).  

The rules on (non-)transferability are as follows: each parent may transfer 100 days of 
parental leave to the other parent, while 60 days are non-transferable.  

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Parental leave may be extended in certain cases (in case of the birth of twins or more, 
a child with special needs, etc.). Parental leave can be used in various flexible ways, as 
a full- or part-time absence from work, immediately following the expiry of maternity 
leave (just one parent, both parents successively, both parents at the same time – if 
taken in the form of part-time absence from work or in special cases, such as the birth 
twins and similar, etc.), whereby 60 days of non-transferable leave  can be used at a 
later  stage,  but  must  be  used  before  the  child  reaches  the  age  of  8  years.  A  non-
transferable part of the parental leave can also be used during the maternity leave.  

Payment/ wage compensation benefit 

Some minor changes have been introduced in terms of the calculation of the payment/ 
wage compensation/ benefit during maternity, paternity and parental leave, but it is not 
particularly relevant from the perspective of the WLB Directive. 

From the perspective of the WLB Directive and other relevant directives in this area, it 
is  important  to  emphasise  that  Slovenian  law  entitles  all  working  parents  to  paid 
maternity/  paternity/  parental  leave,  they  are  entitled  (if  the  relatively  complex 
calculation rules are simplified and generalised) to compensation, as a general rule, to 
an amount of 100 per cent of their previous salary.  

During  such  leaves,  parents  have  the  right  to  a  payment,  the  so-called  maternity 
compensation  benefit  (‘materinsko  nadomestilo’),  paternity  compensation  benefit 
(‘očetovsko nadomestilo’), parental compensation benefit (‘starševsko nadomestilo’) in 
the amount of 100 per cent of the base salary (Article 47 of the ZSDP-1), whereby the 
base salary is calculated as the average of the worker’s previous wages/ salaries over 
the  last  12  months;  the  law  prescribes  the  minimum  amount  of  the  compensation 
benefit (with reference to the amount of basic minimum income regulated by the social 
assistance legislation) and the maximum ceiling (in the amount of 2.5 average salaries 
in  the  previous  year),  this  maximum  ceiling  does  not  apply  to  the  maternity 
compensation benefit.  

Flexible working arrangements 

Some  minor  changes  to  the  right  of  parents  to  work  part  time  due  to  child  care 
responsibilities have been introduced, which were regulated before the last changes to 
ZSDP-1F.  In  short,  one of the parents is entitled to start working part-time if he/she 
has  care  responsibilities  for  a  child  younger  than  the  age  of  3  years  (for  a  child  with 
severe disabilities, this right is extended until the child reaches the age of 18 years). In 
case  of  two  (or  more)  children,  the  right  to  work  part-time  due  to  childcare 
responsibilities is extended until the younger child reaches the age of  8 years (before 
the ZSDP-1F, the age limit was until the younger child completes first grade of primary 
school). Partial absence from work may not exceed half of full-time work, i.e. 20 hours 
per week. One year of exercising this right is non-transferable for each of the parents. 
The most recent amendments to the ZSDP-1F have introduced the possibility for both 
parents to exercise this right at the same time, not just one parent at a time (ii.e. the 
partial  absence  from  work  of  both  parents  together  may  not  exceed  half  of  full-time 
work, i.e. 20 hours per week) – see new para 8 of Article 50 of the ZSDP-1.  

Other flexible work arrangements have also already been regulated in the Employment 
Relationships Act, ‘Zakon o delovnih razmerjih (ZDR-1)’, OJ RS No 42/13 et subseq.), 
see, for example, Article 148, para 3 of the ZDR-1 on the possibility for working parents 
to  propose  a  different  distribution  of  working  hours  to  enable  better  reconciliation  of 
work and family responsibilities, and other provisions supporting working parents. 

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1.2  Road transport 

The Act Regulating the Working Time and Compulsory Rest Periods of Mobile Workers 
and on Recording Equipment in Road Transport has been amended (‘Zakon o spremembi 
in  dopolnitvah  Zakona  o  delovnem  času  in  obveznih  počitkih  mobilnih  delavcev  ter  o 
zapisovalni  opremi  v  cestnih  prevozih  (ZDCOPMD-H)’  OJ  RS  No  153/22,  6.12.2022, 
p.12472-12473), referring to EU Regulations Nos. 165/2014/EU and 561/2006/EC. The 
amendments concern the transportation of passengers in scheduled services of less than 
50  km  and  the  transportation  of  passengers  in  the  city  in  scheduled  services  shorter 
than 50 km.  

It is worth noting the new provision of point 10.a of para 1 of Article 3 of the ZDCOPMD, 
which was introduced as part of the most recent amendments and reads as follows:  

“drivers’  working  time  in  scheduled  passenger  transport,  except  in  the  city  in 
scheduled services shorter than 50 km” means the time from the commencement 
to the end of the work, when the driver is available to the employer or performs 
tasks and activities for the employer, with the exception of the time of availability 
(as defined in point 2 of this paragraph), which does not count as working time”.   

The ‘time of availability’ (‘čas razpoložljivosti’, defined in point 2 of the same paragraph) 
refers to:  

“(a)  for  mobile  workers,  the  time  when  the  mobile  worker  is  not  required  to 
remain at his/her workplace, but must be available to commence or to continue 
driving or to perform other work. This type of availability includes, in particular, 
periods  in  which  the  mobile  worker  accompanies  a  vehicle  that  is  being 
transported  by  ferry  or  train,  as  well  as  the  time  spent  waiting  at  borders  or 
waiting times due to driving bans. The mobile worker must be aware of this time 
and  its  estimated  duration  in  advance  before  departure  or  immediately  before 
the actual commencement of his/her time of availability, (b) for mobile workers 
who drive as part of a crew, this refers to the time during which the employ is 
sitting next to the driver or resting on the bed in the vehicle while the vehicle is 
moving”. 

1.3  Data protection  

The new Personal Data Protection Act (‘Zakon o varstvu osebnih podatkov (ZVOP-2)’, 
OJ RS No 163/22, 27.12.2022, p.13676-13699) was passed by the National Assembly, 
and  transposes  the  EU’s  General  Data  Protection  Regulation  (GDPR)  from  2016  into 
Slovenian  law.  The  European  Commission  has  reminded  Slovenia  of  its  failure  to 
implement the GDPR several times. 

1.4  Foreign nationals  

The Order determining occupations for which the employment of foreigners is not linked 
to  the  labour  market  has  been  amended  (‘Odredba  o  spremembi  Odredbe  o  določitvi 
poklicev, v katerih zaposlitev tujca ni vezana na trg dela’, OJ RS No. 163/22, p. 13720).  

A new profession was added to the list, namely ”medical doctors, specialists in general 
medicine” (new point 14 of para 1 of Article 2 of the Order), and the Order was extended 
until 30 June 2023. See also December 2020 Flash Report and June 2022 Flash Report.  

1.5  Reimbursement of work-related costs 

The  amount  of  reimbursement  of  work-related  costs  and  some  other  payments  in 
employment  relationships  that  are  non-taxable  have  been  adjusted  (‘Uredba  o 

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spremembah  in  dopolnitvi  Uredbe  o  davčni  obravnavi  povračil  stroškov  in  drugih 
dohodkov iz delovnega razmerja’, OJ RS No. 162/22, 23. 12. 2022), p.13550).  

1.6  Ban on Sunday trading 

The Trade Act (‘Zakon o trgovini (ZT-1)’, OJ RS No. 24/08 et subseq.) which regulates, 
among others, Sunday trading, has been amended several times. The amendments from 
October  2020  introduced  a  ban  on  Sunday  trading  with  certain  exceptions.  The 
regulation was (unsuccessfully) challenged before the Constitutional Court.  

In July 2021, additional exceptions were added as part of the measures in response to 
the  COVID-19  epidemic:  “until  31  December  2022,  as  an  exception  to  the  ban  on 
Sunday  trading,  shops  at  airports,  in  tourist  information  centres  and  museums  may 
remain open on Sundays and holidays”.  

These exceptions (shops at airports, in tourist information centres and museums) which 
was  set  to  expire  on  31  December  2022,  have  now  been  included  as  permanent 
exceptions in the Trade Act (‘Zakon o spremembah in dopolnitvi Zakona o trgovini (ZT-
1C)’, OJ RS No. 161/22, 23.12.2022, p.13242).   

See more on ban on Sunday trading in the October 2020 Flash Report and the May and 
July 2021 Flash Reports.  

2 

Court Rulings 

2.1  Annual leave 

Constitutional Court, 10 November 2022, OJ RS No 157/22 

A  decision  of  the  Constitutional  Court  of  the  Republic  of  Slovenia  concerning  annual 
leave  was  made  public  and  published  in  the  OJ  RS  (Decision  No.  U-I-101/18-16  Up-
276/18-19 of 10 November 2022, OJ RS No. 157/22, 16.12.2022, p. 12937-12945). 

The Constitutional Court found that the  rules  which temporarily introduced the upper 
limit, i.e. the maximum number of days of paid annual leave to which public employees 
can be entitled, were in breach of the prohibition of discrimination guaranteed by the 
Slovenian Constitution as well as numerous international treaties  that are  binding for 
Slovenia, whereby the Constitutional Court also referred to the Charter of Fundamental 
Rights of the EU, Article 31, as  well as to Directive 2003/88/EC and, in particular, to 
Directive  2000/78/EC,  and  to  the  corresponding  CJEU  case  law.  However,  the 
Constitutional Court explained that, in principle, EU law may be relevant in relation to 
the issue of discrimination with respect to the right to paid annual leave; however, in 
the present case, EU law was not decisive.  

In short, the Constitutional Court decided that the upper limit to the right to paid annual 
leave for public employees was unconstitutional, because in certain cases, due to this 
rule, additional days of leave envisaged for older workers and workers with disabilities 
could  not  be  used  by  the  workers  concerned  if  the  upper  limit  was  exceeded  due  to 
these additional days of annual leave. Some older workers and workers with disabilities 
were therefore victims of discrimination with respect to their right to paid annual leave. 

Relevant  reference  to  EU  law,  i.e.  Article  31  of  the  CFREU,  Directive  2003/88  and 
Directive 2000/78) as well as to CJEU case law can be found, in particular, in paras. 29 
and 43 of the decision, and in footnotes Nos 3, 7, 8, 17, 19, 20 and 29. 

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3 

Implications of CJEU Rulings  

3.1   Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The case concerned temporary agency workers and, in particular, the interpretation of 
Article 5(3) of Directive 2008/104. The CJEU developed the interpretation of the concept 
of  ‘overall  protection  of  temporary  agency  workers’  and  of  ‘basic  working  and 
employment conditions’, and addressed the issue of collective agreements which, while 
respecting  the  overall  protection  of  temporary  agency  workers,  may  establish 
arrangements concerning the working and employment conditions of temporary agency 
workers  which  may  differ  from  those  referred  to  in  para  1  of  that  article  (which 
establishes  the  equal  treatment  rule:  basic  working  and  employment  conditions  of 
temporary agency workers shall be at least those that would apply to them if they had 
been directly recruited by the undertaking in which they are carrying out their temporary 
assignment to occupy the same job). 

Among  others,  the  CJEU  emphasised  that  where  the  social  partners,  by  means  of  a 
collective agreement, allow differences in treatment with regard to basic working and 
employment conditions to the detriment of temporary agency workers, that collective 
agreement  must,  in  order  to  respect  the  overall  protection  of  the  temporary  agency 
workers concerned, afford them advantages in terms of basic working and employment 
conditions which are such as to compensate for the difference in treatment they suffer. 
The  Court  explained  what  is  needed  to  fulfil  the  obligation  to  respect  the  overall 
protection  of  temporary  agency  workers  in  such  cases.  According  to  the  CJEU, 
appropriate comparison must be made, in concrete terms, between the basic working 
and  employment  conditions  applicable  to  workers  recruited  directly  by  the  user 
undertaking and those applicable to temporary agency workers; however, this obligation 
does not require the temporary agency worker concerned to have a permanent contract 
of  employment  with  a  temporary  work  agency,  and  the  national  legislature  is  not 
required to lay down the conditions and criteria designed to respect this requirement of 
overall  protection  of  temporary  agency  workers  in  such  cases,  and  such  collective 
agreements must be amenable to effective judicial review 

The case has no major implications for Slovenian law, as the legislature in Slovenia has 
not given social partners the option of upholding or concluding collective agreements 
that  may  authorise  differences  in  treatment  with  regard  to  basic  working  and 
employment conditions to the detriment of temporary agency workers. 

4 

Other Relevant Information 

4.1  Collective bargaining 

Several annexes to the existing sectoral collective agreements have been concluded and 
published in the OJ RS, which mainly adjust the amounts of minimum basic wages and 
some  other  work-related  payments  (reimbursement  of  travel  costs,  etc.).  See,  for 
example, OJ RS No. 155/22, 9.12.2022, p.12644-12645 – for the trade sector; in OJ 
RS No 156/22, 14.12.2022, p.12833; in OJ RS No 161/22, 23.12.2022, p. 13310, etc.). 

The  Annex  to  the  Collective  Agreement  for  Radiotelevizija  Slovenia  was  concluded 
(‘Aneks št. 14 h Kolektivni pogodbi javnega zavoda RTV Slovenija’, OJ RS No. 155/22, 
9.12.2022,  p.12633-12644)  which  regulates  several  issues,  but  also  entitles  top 
management to relatively high severance pay in case of redundancy. This Annex was 
not negotiated/ concluded with all relevant representative trade unions and caused a 
delicate situation and led to tensions. It also raises, among others, the issue of possible 
misuse  of  the  institution  of  collective  agreement  and  the  question  of  the  validity  of 
collective agreements. 

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The government concluded an agreement on strike demands in the health care sector, 
followed by amendments/annexes to the respective collective agreements (‘Sporazum 
o razreševanju stavkovnih zahtev in o realizaciji Dogovora o nujnih ukrepih na področju 
plač v dejavnosti zdravstva in socialnega varstva in nadaljevanju pogajanj’, OJ RS No. 
165/22,  29.12.2022,  p.  13841-13919;  ‘Aneks  h  Kolektivni  pogodbi  za  dejavnost 
zdravstva  in  socialnega  varstva  Slovenije’,  in  the  same  OJ,  p.13920-13953,  ‘Aneks  h 
Kolektivni pogodbi za zaposlene v zdravstveni negi’, in the same OJ,  p.13953-13954; 
‘Aneks k Posebnemu tarifnemu delu Kolektivne pogodbe za zdravnike in zobozdravnike 
v Republiki Sloveniji’, in the same OJ, p.13954-13958); however, only with some of the 
trade unions, whereas FIDES, the main trade union of medical doctors and dentists, still 
has not agreed and announced further strikes and an intensification of their activities to 
achieve their demands. 

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Spain 

Summary  

(I)  A  new  law  has  introduced  new  rules  to  facilitate  the  residence  of  international 
teleworkers in Spain. 

(II)  The  Criminal  Code  has  been  amended  to  include  bogus  self-employment  as  a 
crime. 

(III)  The  Supreme  Court  has  reiterated  that  the  stand-by  time  of  health  care  staff 
shall be considered working time when they are required to remain at the employer’s 
premises and/or need to be permanently available. 

_____________________________________________________________________ 

1 

National Legislation 

1.1  Teleworking 

With the implementation of Law 28/2022 of 21 December 2022, new rules will apply to 
international  teleworkers  to  facilitate  their  residence  in  Spain.  As  a  general  principle, 
entry  into  Spain  requires  applying  for  and  obtaining  the  relevant  administrative 
authorisations. The so-called ‘digital nomads’ raise different concerns because they can 
perform  their  work  from  anywhere.  These  new  rules  allow  people  who  telework  for 
undertakings outside Spain to live in Spain. They need a residence authorisation that 
does not permit them to work for an undertaking based in Spain (otherwise, they would 
need an employment permit), but the requirements are significantly laxer. These new 
rules  are  intended  to  create  a  new  type  of  residence  permit  for  people  who  are  not 
looking for a job in Spain.  

1.2  Bogus self-employment 

Article 311 of the Criminal Code has been amended to specifically include bogus self-
employment as a crime. This amendment is linked to platform work. Law 12/2021 of 28 
September created a platform-specific presumption (a rebuttable legal presumption) on 
the existence of an employment relationship in the field of delivery services (such as 
Glovo, Deliveroo or UberEats riders). Some platform companies continue to hire riders 
as self-employed persons, and disregard the legal presumption. This legal amendment 
aims to introduce a more dissuasive penalty to force compliance with the law. 

1.3  Budget Law 

The General State budget laws are not labour law acts, but usually include some relevant 
measures in this field related to the programming of public revenues and expenditures. 
The  Budget  Law  regulates,  for  example,  the  capacity  of  public  administration  to  hire 
staff, and is also responsible for setting the contributions that undertakings and workers 
must  pay  to  the  social  security  schemes.  Law  21/2022  of  23  December  2022  covers 
these two objectives for 2023. 

As in previous years, the Budget Law establishes the basic criteria for the remuneration 
of public employees (civil servants and workers with an employment contract) and for 
the recruitment of temporary staff during 2023. Wages of public employees will increase 
by 2.5 per cent in 2023.  

The Budget Law traditionally includes some labour law rules, even amendments to the 
Labour  Code.  This  was  not  the  case  this  year.  It  is  worth  mentioning  that  Additional 
Provisions 86 to 89 provide funding to implement employment measures in Andalusia, 
the Canaries and Extremadura. 

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2 

Court Rulings 

2.1  Stand-by time 

Supreme Court, ECLI:ES:TS:2022:4512, 22 November 2022 

The Supreme Court reiterated that the stand-by time of health care staff is working time 
when  they  are  required  to  remain  at  the  employer’s  premises  and/or  need  to  be 
permanently available. The present case involved the staff of an ambulance transport 
and the Supreme Court expressly referred to Directive 2000/34/EC and to relevant CJEU 
case law. 

2.2  Equal treatment 

Supreme Court, ECLI:ES:TS:2022:4351, 23 November 2022 

Workers of the same undertaking often have different working conditions depending on 
the date they were hired. This is usually connected with the difficult economic situations 
of the employer. When the employer faces a difficult economic situation, the employer 
seeks  to  cut  costs,  but  the  workers  do  not  want  to  lose  some  of  their  benefits  or 
advantages.  Collective  bargaining  has  played  a  major  role  in  such  situations,  with 
workers who were already working for the employer to keep some of the established 
benefits, while newly hired workers were excluded from them.  

Both the Supreme Court and the Constitutional Court have been very restrictive in their 
interpretation,  considering  that  this  difference  is  not  permissible  according  to  the 
principle  of  equality,  unless  the  employer  proves  that  it  has  a  very  valid  reason  that 
justifies such a difference in treatment. That reason was not proven in the present case, 
which concerned an additional period of annual leave granted to workers who had been 
hired  before  2019  in  the  respective  undertaking.  The  Supreme  Court  stated  that  a 
collective  agreement  could  not  exclude  the  new  workers  from  that  additional  leave 
period without a relevant reason. The employer argued that the more senior workers 
had  faced  several  sacrifices  in  the  past  and  that  additional  days  of  rest  was  their 
compensation for those sacrifices, but the Supreme Court deemed that the ‘sacrifices’ 
had not been adequately proven, and hence there was no justification for the difference 
in treatment.  

2.3  Dismissals related to COVID 

Supreme Court, ECLI:ES:TS:2022:4658, 13 December 2022 

The special provisions adopted during the COVID pandemic did not allow for dismissals 
related  to  COVID.  Most  undertakings  faced  various  struggles,  but  the  government 
considered  these  struggles  to  be  of  a  temporary  nature,  hence  temporary  layoffs  or 
other  similar  measures  were  permitted  while  more  definitive  measures,  such  as 
dismissals, were not allowed. However, the relevant provisions did not explicitly prohibit 
dismissals.  They  simply  considered  that  COVID  and,  in  general,  economic  difficulties 
due to the pandemic were not a valid reason for dismissal.   

The  legal  rule  was  not  sufficiently  clear  and  generated  legal  uncertainty,  because 
Spanish law distinguishes between unfair dismissal and a dismissal that is null and void. 
In  case  of  unfair  dismissal,  the  employer  has  the  right  to  choose  between  the 
reinstatement of the worker and the termination of the employment contract and paying 
severance.  In  case  of  a  dismissal  that  is  null  and  void  and  that  is  associated  with  a 
violation of a fundamental right, the worker has the right to reinstatement.  

The Supreme Court deemed that the relevant provisions did not explicitly provide for 
clear indications on the consequences of the breach of that legal rule. A dismissal that 
is  null  and  void  would have  required  more  precision.  Therefore,  dismissals  related  to 

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COVID  prior  to  February  2022  (this  limitation  was  then  removed)  were  considered 
unfair, but not null and void, hence reinstatement is not mandatory. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU Case C-311/21, 15 December 2022, TimePartner Personalmanagement 

This ruling will not have any implications for Spain because Law 14/1994 does not allow 
the same room for manoeuvre as the German legislation. The worker assigned to a user 
undertaking is entitled to conditions that should be at least equivalent to those of the 
user  undertaking’s  regular  workers.  Moreover,  the  collective  agreement  of  the  user 
undertaking  also  applies  indirectly  to  temporary  agency  workers  (Article  11  of  Act 
14/1994)  and  there  are  no  derogations  or  any  possibilities  for  collective  bargaining. 
Therefore,  differences  in  treatment  with  regard  to  basic  working  and  employment 
conditions  to  the  detriment  of  temporary  agency  workers  are  not  allowed,  so  the 
interpretation of the meaning of ‘overall protection of temporary agency workers’ is not 
an issue in Spain. 

4 

Other Relevant Information 

Nothing to report. 

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Sweden 

Summary  

(I)  The  Labour  Court  has  held  that  the  summary  dismissal  of  an  employee  due  to 
unlawful absence from work due to not having been granted annual leave was lawful. 

(II) The Labour Court has ruled in a case on temporary agency work, concluding that 
the  duty  to  negotiate  does  not  apply  when  the  contracting  partner  outsources  the 
staffing to another sub-supplier. 

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

2.1  Termination after unlawful absence 

Labour Court, AD 2022 No. 56, 14 December 2022. 

An employee’s request  for  five  consecutive weeks  of annual leave in December 2019 
and January 2020 for a family trip to Nigeria was rejected by the employer. In December 
2019  and  January  2020,  the  employee  was  absent  from  work.  As  a  reason  for  his 
absence, the employee claimed that he had been unable to work due to sickness and 
invoked medical certificates from Sweden and Nigeria. The employer asserted that the 
employee had not really been sick but had been unlawfully absent. Consequently, the 
employer  decided  to  summarily  dismiss  the  employee.  The  employee  initiated,  with 
support  from  his  trade  union,  proceedings  against  the  employer  for  wrongful 
termination. 

The Labour Court held in its judgment that the summary dismissal was lawful as the 
employee’s  absence  from  work  had  been  unlawful.  In  its  assessment,  the  Court  held 
that it was proven that the trip had been planned, regardless of the lack of leave consent 
by  the  employer.  The  Court  also  found  that  the  Nigerian  medical  certificate  was 
fraudulent.  

2.2  Employer’s duty to negotiate  

Labour Court, AD 2022 no 59, 21 December 2022. 

The  Labour  Court  decided  on  a  case  on  the  employer’s  duty  to  negotiate  with  trade 
unions  on  the  employment  of  temporary  agency  workers  in  AD  2022  No.  59.  The 
Swedish Co-determination Act explicitly states that the employer has a duty to negotiate 
with  the  trade  union  that  is  party  to  the  collective  agreement  prior  to  engaging  with 
staff under agency work arrangements (38 § Co-determination Act), which is combined 
with an option for the trade union to execute a veto if the labour conditions under law 
or collective agreements are expected to be set aside.  

In the present case, the employer, SAS, had agreed with the trade union to outsource 
some parts of the flight operations to an external company, which had, in turn, arranged 
with yet another sub-contractor to staff the aircrafts. The Labour Court concluded that 
SAS (employer with a collective agreement) was under no obligation to negotiate when 
the contractor operated the SAS flights with staff from another sub-contractor. The duty 
only applied to the first situation when they also had negotiated with the Pilot Union. 

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3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

The CJEU’s decision in case C-311/21 raises some interesting questions from a Swedish 
perspective, but does not necessarily provide  as many explicit answers.  The Swedish 
tradition of collective bargaining offers far-reaching opportunities for industrial partners 
to deviate from statutory labour law by collective agreements, also in pejus. This has 
been a re-emerging issue when EU labour law has been transposed in Sweden; to what 
extent can collective partners set legislation aside and what forms of compensation to 
the workers is obligatory?  

In its ruling, the CJEU points to the fact that the legislation in the Member States does 
not have to contain specific provisions on labour conditions which collective agreements 
have to adhere to, as long as the collective agreement respects the overall protection 
guaranteed by the Directive, i.e. the protection of temporary agency workers. According 
to  the  judgment,  the  assessment  of  whether  overall  protection  has  been  guaranteed 
must  follow  a  strict  methodology.  Negative  deviations  of  one  of  the  protected  “basic 
working and employment conditions” must be compensated within one of the other such 
conditions.  This  formalised  bargaining  procedure  is,  from  a  Swedish  perspective, 
restrictive  of  the  industrial  partners’  contractual  freedom.  Deviations  in  Swedish 
collective agreements can normally not be traced in the way that the judgment seems 
to demand.  

As regards possibilities to subject collective agreements to effective judicial review for 
the  determination  of  their  compliance  with  the  obligations  under  the  Directive,  the 
outcome is alien to the Swedish system. It is rare that an individual employee brings a 
case  before  the  court  for  an  assessment  of  an  established  collective  agreement, 
especially if there was limited support by statutory law. However, a possibility to do so 
exists under Swedish law as well. In the Labour Court’s judgment AD 2004 No. 73, for 
example, the Labour Court held that a collective agreement may not “improperly deviate 
from the employee’s statutory rights”. The precise threshold level of this concept has 
not  been  clarified.  The  EU  Directive,  with its limited  clarifications  regarding  details  of 
protection, will form a much stricter and more foreseeable legal basis for the claims of 
an  individual  worker.  The  judgment  may  therefore  lead  to  more  disputes  raising 
questions about Swedish collective agreements. 

4 

Other Relevant Information 

4.1  Minimum Wage Directive 

The  government  has  launched  a  public  enquiry  for  assessing  the  transposition  of  the 
Minimum Wage Directive 2022/2042. The  report, including suggestions for legislative 
changes, must be presented by 23 June 2023, the latest.  

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United Kingdom 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

2.1  European Works Councils  

Employment Appeal Tribunal, [2022] EAT 183, 13 December 2022, Olsten Holdings Ltd 
v Addecco Group. 

Olsten Holdings Ltd v Addecco Group, this case, the facts of which arose before the end 
of  the  Brexit  transition  period,  concerned  an  appeal  against  a  Central  Arbitration 
Committee (CAC) decision on EWC. The EAT asserted the CAC had correctly concluded 
that ‘proposed redundancies’ in more than one EEA state proposed by undertakings in 
a group operating across numerous  EEA states, gave  rise to a  ‘transnational’ matter, 
creating an obligation on the employer group under a European Works Council (EWC) 
agreement  to  call  an  extraordinary  meeting  to  provide  information  and  engage  in 
dialogue with employee representatives. The CAC had correctly upheld the complaint of 
the  respondent  EWC,  acting  through  its  employee  representatives.  Redundancies 
proposed by group undertakings in more than one EEA state at the same or about the 
same  time  constituted  a  transnational  matter,  even  if  they  did  not  share  a  common 
rationale.  On  the  EWC’s  application  to  the  Appeal  Tribunal  (exercising  original  not 
appellate jurisdiction) to impose a penalty on the appellant (as appointed representative 
of the Group with its headquarters in Switzerland) in respect of the two well-founded 
complaints, the EAT said there would be a penalty of: (1) GBP 20 000 for breaching the 
EWC agreement by failing to convene an extraordinary meeting with the steering group 
of  employee  representatives,  established  under  the  EWC  agreement,  to  provide 
information  and  engage  in  dialogue  about  collective  redundancies  in  Sweden  and 
Germany  (the  redundancies  complaint);  and  (2)  GBP  5  000  for  breaching  the  EWC 
agreement  and  Regulation  18A  of  the  Transnational  Information  and  Consultation  of 
Employees Regulations 1999, as amended (the 1999 Regulations) by refusing to supply 
business  sales  performance  data  broken  down  by  country  in  connection  with  the 
November  2020  Annual  Plenary  Meeting  (the  sales  data  complaint).  This  is  only  the 
second time a penalty has been imposed by the EAT under the TICE Regulations. 

3 

Implications of CJEU Rulings  

3.1  Temporary agency work 

CJEU case C-311/21, 15 December 2022, TimePartner Personalmanagement 

Case C-311/221 is the first major decision by the Court of Justice on the question of the 
meaning of Article 5(3) of the TAW Directive which provides that ‘Member States may, 
after consulting the social partners, give them, at the appropriate level and subject to 
the conditions laid down by the Member States, the option of upholding or concluding 
collective  agreements  which,  while  respecting  the  overall  protection  of  temporary 
agency workers, may establish arrangements concerning the working and employment 
conditions  of  temporary  agency  workers  which  may  differ  from  those  referred  to  in 
paragraph 1.’ The consultation with the unions when the legislation was being adopted 

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in the UK led to the adoption of the 12 week qualifying period before the equal treatment 
rights applied. The UK did not take advantage of Article 5(3). 

4 

Other Relevant Information 

4.1  Northern Ireland Protocol Bill (NIPB) 

For  the  last  couple  of  months,  the  UK  Flash  Reports  have  been  reporting  on  the  UK 
government’s desire to turn off parts of the Northern Ireland Protocol. Much was put on 
hold pending the outcome of the Tory leadership contest. The Bill was debated in the 
Lords on 25 October 2022. The new Prime Minister, Rishi Sunak, is said to be committed 
to the Bill and is prepared to use the  Parliament Acts to get it through. However, its 
progress through the Lords has been delayed. 

4.2  Retained EU Law 

The Bill is now at the report stage having passed its second reading in the Commons. 
During  the  second  reading  debate,  the  government  made  a  commitment  to  take  the 
necessary action to safeguard the substance of any retained EU law and legal effects 
required to operate international obligations within domestic law, including those under 
the  UK-EU  Trade  and  Co-operation  Agreement,  the  Withdrawal  Agreement  and  the 
Northern Ireland Protocol.  

The Bill was considered not  on the floor  of the House but by the House of Commons 
Public Bill Committee for the Retained EU Law (Revocation and Reform) Bill. Very few 
changes  were  made  at  this  stage.  The  latest  version  of  the  Bill  can  be  found  here. 
Rumours are currently swirling about the Bill with the Times reporting (02 January 2023) 
that it was ‘inevitable’ that the government would have to abandon its plans when the 
legislation  reaches  the  House  of  Lords,  suggesting  that  the  deadline  of  31  December 
2023 would not survive. The Times also suggests that three government departments, 
including  BEIS  (where  most  employment  legislation  sits)  expected  to  extend  the 
deadline until 2026. However, a government spokesperson has said on twitter: 

“There are ‘no plans’ to extend the deadline for scrapping / retaining / amending 
EU  laws,  says  the  Prime  Minister's  spokesperson.  Secretaries  of  state  are  still 
being  asked  to  complete  this  work  -  which  involves  around  4k  pieces  of  EU-
add.” 
derived 

2023, 

they 

end 

law 

the 

by 

of 

- 

4.3  Single Enforcement Body 

The UK does not have a labour inspectorate. However, there are a number of agencies 
that enforce regulations but all with limited jurisdiction: HMRC (Her Majesty’s Revenue 
and  Customs)  enforces  the  minimum  wage;  EASI  (Employment  Agency  Standards 
Inspectorate)  protects  the  rights  of  agency  workers  by  ensuring  that  employment 
agencies and businesses treat their workers fairly; GLAA (Gangmasters Licensing and 
Abuse  Authority)  which  licenses  gangmasters  who  provide  workers  in  agriculture, 
horticulture, shellfish gathering, and any associated processing and packaging as well 
as  investigating  reports  of  worker  exploitation  and  illegal  activity  such  as  human 
trafficking, forced labour and illegal labour provision; and HSE (the Health and Safety 
Executive)  with  enforcement  powers  in  respect  of  health  and  safety  matters.  
The government committed itself to the creation of a single enforcement body (covering 
HMRC minimum wage enforcement, EASI and GLAA) as part of its Good Work Plan 2018. 
In a session of the Business Energy and Industrial Strategy (BEIS) Committee held on 
13 September 2022, the Business Secretary, Grant Shapps, said that plans to introduce 
a single enforcement body were not currently being advanced. The focus instead now 
seems to be to get the existing enforcement bodies to work better. In evidence to the 
BEIS Committee of 13 December 2022, the Secretary of State confirmed that ‘We have 

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had  five  separate  Bills,  which  the  Department  has  helped  sponsor  through  Back 
Benchers. I do not think we have an Employment Bill on the cards per se.’ 

4.4  Seafarers Wages Bill 

The  Seafarers  Wages  Bill  is  currently  going  through  Parliament.  Introduced  following 
the  P&O  dismissal  of  more  than  700  workers  without  notice  or  going  through  the 
statutory consultation and their replacement by lower paid agency staff, the Bill gives 
ports the power to refuse access to ferry services that do not pay the equivalent of the 
national minimum wage to seafarers while in UK waters. However, it does not address 
the  issues  that  arose  concerning  the  protection  of  seafarers  under  collective 
redundancies legislation. The TUC has written to the government asking them to amend 
the Bill. 

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EUROPEAN COMMISSION 

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