CELEX: 51982PC0155
Language: en
Date: 1982-04-30
Title: PROPOSAL FOR A COUNCIL DIRECTIVE CONCERNING TEMPORARY WORK

No C 128/2                            Official Journal of the European Communities                             19.5.82
                                                              II
                                                       (Preparatory Acts)
                                                 COMMISSION
                                Proposal for a Council Directive concerning temporary work
                                (Submitted by the Commission to the Council on 7 May 1982)
  THE COUNCIL OF THE EUROPEAN                                     Whereas permanent workers must be protected
   COMMUNITIES,                                                    against the misuse of labour supplied by temporary
                                                                  employment businesses or engaged on the basis of
  Having regard to, the Treaty establishing the                   fixed-duration contracts;
  European Economic Community, and in particular
  Article 100 thereof,
                                                                  Whereas employers' operational flexibility must be
  Having regard to the proposal from the Commission,               maintained, in particular where they are subject to
                                                                   short-term fluctuations in staff numbers or economic
  Having regard to the opinion of the European                     activity;
  Parliament,
  Having regard to the opinion of the Economic and                 Whereas national arrangements for the supervision of
  Social Committee,                                                the activities of temporary employment businesses
                                                                  vary greatly from one Member State to another and
  Whereas the Council adopted on 18 December 1979                  are, indeed, non-existent in certain of them; whereas
• a resolution on the adaptation of working time (')               these disparities distort the conditions of competition
  which states with regard to temporary work that                  between undertakings from different Member States,
  'Community measures in support of action by                      hindering the operation of the common market, and a
  Member States should be undertaken to ensure that                solution should therefore be found, notably by means
  temporary work is supervised and that temporary                  of appropriate arrangements for the authorization
  workers receive social protection';                              and supervision of temporary employment businesses;
 Whereas the European Parliament adopted on
  17 September 1981 a resolution (2) which states that            Whereas steps should be taken to ensure that
  temporary work 'is assuming disquieting proportions'            temporary employment businesses do not become
  and that the Commission should therefore 'propose to            concentrated in those Member States where the laws
  the Council a clear definition of temporary work and             are least strict and workers are least well protected;
  guidelines for ensuring that it is not abused';                 whereas these problems cannot be solved at national
                                                                  level alone and should therefore be remedied by
  Whereas permanent employment must remain the                     approximating the relevant laws while maintaining
  rule; whereas in all cases where temporary workers              progress as required under Article 117 of the Treaty;
  do not enjoy the same protection as permanent
  workers recourse to temporary labour should
  therefore be confined to situations where it is                 Whereas the activities of temporary employment
  economically justified and restricted in terms of               businesses are taking on an increasingly international
  duration of contract;                                           character, with businesses established in one Member
                                                                   State operating in others either by recruiting or
 Whereas action should be taken to eliminate abuses               supplying labour there or by setting up subsidiaries,
 with regard to the two main forms of temporary                    agencies or branches there; whereas the disparity of
 employment, namely the supply of workers by                       the rules from country to country creates problems at
 temporary employment businesses and the direct re-                Community level which cannot be solved at national
 cruitment of workers on fixed duration contracts, and             level alone;
 temporary labour subcontracting with delegation of
 authority should be treated as the supply of workers
 by temporary employment businesses;                              Whereas temporary employment businesses should be
                                                                  prevented from exploiting the rules on freedom to
                                                                  provide services and freedom of movement for
 (') OJ No C 2, 4. 1. 1980, p. 1.                                 workers in such a way as to avoid the rules applicable
 (2) OJ No C 260, 12. 10. 1981, p. 54.                            in other Member States,
 ---pagebreak---  19.5.82                          Official Journal of the European Communities                              N o C 128/3
 HAS ADOPTED THIS DIRECTIVE:                                   (j) Fixed-duration    contract of employment: Any
                                                                   contract     of   employment      or     employment
                       SECTION I                                   relationship establishing a direct legal relationship
                                                                   between a worker and an employer, whose termi-
                     DEFINITIONS                                   nation of which is determined by objective
                                                                   conditions such as a specified date of expiry,
                                                                   completion of a specified task or the occurrence
                         Article 1                                 of a specified event.
This Directive relates to temporary work as opposed
to permanent work.
For the purposes of this Directive the following                                     SECTION II
definitions shall apply:
(a) Permanent work: Regular employment undertaken                       SUPPLY OF TEMPORARY WORKERS
    pursuant to a contract of employment or
    employment relationship of indefinite duration.
(b) Supply of temporary workers: The activity engaged                                  Article 2
    in by any natural or legal person regularly
    entering into contracts of employment or
                                                              1.    Member States shall ensure that no temporary
    employment relationships with workers in search
                                                             employment business ,may pursue its activities without
    of jobs for the purpose of placing these workers
                                                             obtaining authorization from the competent auth-
    temporarily at the disposal of another business for
                                                              orities. They shall moreover ensure that the activities
    the performance of an assignment.
                                                             of businesses so authorized are adequately supervised.
    The term /supply of temporary workers' shall also
    be deemed to cover activities engaged in pursuant
    to contracts which, whilst ostensibly relating to        2.     Any Member State (host country) may prohibit
    temporary labour subcontracting, in reality              the pursuit of activities within its territory by a
    involve the delegation of authority to the user          temporary employment business authorized in
    undertaking.                                             another Member State (country of origin) if the
                                                             business concerned does not fulfil the specific
(c) Temporary worker: Any worker who enters into a           conditions which the host country imposes on its own
    contract of employment or an employment                  nationals in the general interest.
    relationship with a temporary employment
    business for the purpose of carrying out an
    assignment with a user undertaking.                      3.     It shall be unlawful to engage in the supply of
(d) Permanent worker: Any worker who enters into a           temporary workers without the authorization referred
    contract of employment of indefinite duration            to in this Article. Where temporary workers have
    with an employer.                                        been supplied unlawfully, the user undertaking shall
                                                             bear a secondary liability, in the event of default by
(e) Temporary employment business: Any natural or            the temporary employment business, for the social
    legal person entering into temporary employment          security conbributions, remuneration and other
    contracts or temporary employment relationships          benefits due to the temporary workers concerned
    in the capacity of employer.                             including, where appropriate, the cost of repatriation.
(f) Temporary employment contract: The contract or
    employment relationship entered into by the
    temporary      employment      business    and   the                               Article 3
    temporary worker.
(g) User undertaking: Any natural or legal person to          1.    Labour supply contracts may be concluded only
    whom workers are supplied within the meaning              in the following circumstances:
    of point (b).
(h) Labour supply contract: The contract between the          (a) a temporary reduction in the workforce, or
    temporary employment business and the user
    undertaking by virtue of which a temporary                (b) a temporary or exceptional increase in activity.
    worker is placed at the disposal of the user under-
    taking for the performance of an assignment.
                                                             2.     In cases covered by paragraph 1 (b), the
(i) Assignment: A temporary job of work performed            maximum duration of each assignment shall be three
    by a temporary worker for a user undertaking.            months, renewable once. An extension beyond six
 ---pagebreak---  No C 128/4                           Official Journal of the European Communities                           19. 5. 82
 months may, however, be authorized by the                                              Article 6
 competent authorities where it can be shown that this
 is justified by exceptional circumstances.                    Unless laid down within the framework of collective
                                                               agreements     concluded       within the   temporary
 3.     No post shall be occupied by successive                employment business or for            the   temporary
temporary workers after expiry of the periods fixed in         employment sector, the remuneration received by a
paragraph 2.                                                   temporary worker shall be comparable to that
                                                              received by workers occupying equivalent posts in the
4.      Member States may derogate from the                   user undertaking or that provided for in the collective
provisions of paragraph 1 where the social benefits            agreement for the sector concerned.
accorded by virtue of labour law, collective
agreements or customary industrial practice in the
undertaking are enjoyed by temporary workers on                                         Article 7
the same terms as permanent workers.
                                                               1.   In the event of a temporary employment
                                                              contract being terminated by the temporary
                                                              employment business before the date of expiry
                          Article 4                           specified, before completion of the task specified or
                                                              before occurrence of the event specified, the
Temporary workers may not be excluded from social             temporary worker shall be entitled to compensation
security schemes and their contributions and benefits         equal to the remuneration which he would have
shall be calculated on the same basis as for permanent        received had the contract not been terminated early.
workers, subject where applicable to special
provisions taking into account the duration of                2.    The provisions of paragraph 1 shall be without
employment and/or the remuneration received.                  prejudice to the application of national law
                                                              concerning force majeure or serious misconduct on the
                                                              part of the worker.
                          Article 5
                                                                                        Article 8
1.     Where a temporary employment contract is not
of indefinite duration the duration of employment
shall be clearly defined in writing in terms either of a      Procedures for informing workers
specified date of expiry or of completion of a
specified task or of the occurrence of a specified            The user undertaking shall be required to inform the
event.                                                        representatives of its employees before having
                                                              recourse to temporary workers on the basis of
                                                              Article 3 (1) (b) or (4).
2.     In addition, the nature of the work to be
performed, the place of work and working hours, the
agreed remuneration and the allowances to which the           To this end, the user undertaking shall be required to
temporary worker is entitled shall be defined in              communicate in writing to the representatives of its
writing as between the temporary employment                   employees all pertinent information with regard in
business and the worker.                                      particular to:
                                                              — the reasons for having recourse to temporary
3.     In the event of the contract not being duly                workers, except in the case of the application of
evidenced in writing, it shall be subject to the rules            Article 3 (4),
governing contracts of employment of indefinite
duration.                                                     — the duration of the assignments involved,
                                                              — the number of temporary workers involved,
4.      Clauses prohibiting the conclusion of a contract
of employment between the user undertaking and the            — the occupational qualifications required,
temporary worker after the completion of the latter's         — the intended level of remuneration (information to
assignment shall be null and void or capable of being             be provided to the user undertaking by the
declared so.                                                      temporary employment business, if necessary),
Clauses compelling the user undertaking to pay                — the amount to be paid by the user undertaking to
compensation to the temporary employment business                 the temporary employment business,
in the event of the conclusion of such a contract of
employment shall likewise be null and void or capable         — the place and hours of work and, the particular
of being declared so.                                             nature of the jobs to be performed.
 ---pagebreak---  19. 5. 82                        Official Journal of the European Communities                            N o C 128/5
                         Article 9                            2.     The liaison offices shall exchange information
                                                              relating to:
 1.    Temporary workers shall, for the duration of           — laws, regulations and administrative provisions in
their assignment, be subject to the laws, regulations,             force with regard to the supply of temporary
and administrative and collectively agreed provisions,             workers;
and the customary practices in force in the user
                                                              — any amendments thereto.
undertaking as regards working conditions.
                                                              3.     Each liaison office shall inform the liaison
2.     Working conditions shall include all matters           offices in the other Member States as quickly as
relating to working hours, night work, weekly rest            possible of decisions concerning the refusal,
periods, public holidays, safety and health, and              suspension or withdrawal of authorization. The
special medical surveillance to the extent that the           liaison offices shall further inform each other of any
rules in force require this for the work in question.         abuses arising in connection with the application of
                                                              laws, regulations and administrative provisions on the
                                                              supply of temporary workers.
3.    Temporary workers shall have access to any
communal social facilities provided in the user under-        4.     The information referred to in paragraph 3 shall
taking.                                                       also be communicated for information purposes, to
                                                              the European Coordinating Office and the Technical
                                                              Committee on the Free Movement of Workers
                        Article 10
                                                              established by Council Regulation (EEC) No 1612/
                                                              68 (').
Temporary workers supplied on the basis of Article 3
(1) (b) or 4 shall be deemed to form part of the user                                 Article 13
undertaking's workforce for the purposes of
determining such of that undertaking's social
obligations under law, collective agreements or               1.     Member States shall, with a view more par-
customary industrial practice in the undertaking as           ticularly to ensuring effective mutual assistance in
are linked to the number of workers employed.                 administrative matters, take the necessary steps to
                                                              establish genuine coordination and cooperation
                                                              between the authorities responsible for matters
                                                              concerned with the supply of temporary workers.
                        Article 11
                                                              2.     The assistance referred to in paragraph 1 shall
Temporary workers shall not be recruited or used to           consist in particular in replying directly and without
                                                              undue delay to any reasoned request for information
perform the duties of employees who are on strike.
                                                              concerning problems with regard to the supply of
                                                              temporary workers, apparent abuses and possible
                                                              cases of unlawful cross-frontier activities within the
                                                              meaning of this Directive. Mutual administrative
                                                              assistance shall be provided free of charge.
                      SECTION III
                                                              3.     The authorities of the Member States shall assist
                 SPECIAL PROVISIONS                           each other in connection with:
                                                              — the consideration of applications for authorization
    The cross-frontier supply of temporary workers                 to engage in the supply of temporary workers,
                                                              — the      supervision    of    authorized    temporary
                                                                   employment businesses,
                        Article 12                            — the prosecution of unauthorized             temporary
                                                                   employment businesses;
1.     Member States shall exchange all information           — the detection and prosecution of businesses
on the supply of temporary workers by employment                  engaged in the supply of temporary workers
businesses. To this end, they shall designate liaison             under cover of temporary labour subcontracting,
offices, either assigning this task to an existing body
or creating a new body for the purpose. The relevant
details shall be communicated to the other Member
States and the Commission.                                    (l) OJ No L 257, 19. 10. 1968, p. 2.
 ---pagebreak--- No C 128/6                            Official Journal of the European Communities                            19.5.82
— the payment of the unsatisfied claims of                     engaged on fixed-duration contract enjoy the social
    temporary workers carrying out assignments in a            benefits accorded to permanent workers by virtue of
    Member State other than that in which the                  labour law, collective agreements or the customary
    temporary employment business has been declared            industrial practice of the undertaking.
    insolvent in accordance with Council Directive.
    80/987/EEC (').
                                                                                       Article 16
                        Article 14
                                                               1.   The duration of employment shall be clearly
                                                               defined in writing in terms either of a specified date
The Advisory Committee on the Free Movement of
                                                               of expiry or of completion of a specified task or of
Workers created by Regulation (EEC) No 1612/68
                                                               the occurrence of a specified event.
shall be responsible for reviewing the results of the
exchanges of information, collaboration and mutual
assistance between Member States provided for in this          2.    In addition, the nature of the work to be
Directive.                                                    performed, the place of work and working hours, the
                                                               agreed remuneration and the worker's entitlements
                                                              with regard to annual holiday payments shall be
                                                              defined in writing as between the employer and the
                       SECTION IV                             worker; the document setting out this information
                                                              shall also specify the duration of any probationary
            FIXED-DURATION CONTRACTS                          period.
                        Article 15                            3.    In the event of the contract not being duly
                                                              evidenced in writing, it shall be subject to the rules
1.    An employer may conclude a fixed-duration               governing contracts of employment of indefinite
contract of employment only in the following                  duration, except where the terms and conditions of
circumstances:                                                employment of a specified category of workers are
                                                              defined by a collective agreement.
(a) to cope with a temporary reduction            in the
    workforce;
(b) to cope with a temporary or exceptional increase                                   Article 17
    in activity or seasonal activities;
                                                              Unless laid down within the framework of collective
(c) for the execution of a clearly defined occasional
                                                              agreements concluded within the undertaking or at
    task of a transient nature;                               sectoral level, the remuneration of a worker on fixed-
(d) where the special nature of the work is such as to        duration contract shall not be less than that received
    justify the conclusion of fixed-duration contracts        by permanent workers occupying equivalent post.
    and contracts of employment of indefinite
    duration are not customary;
                                                                                       Article 18
(e) in connection with the launching of a new activity
    of uncertain duration.
                                                              1.    In the event of a fixed-duration contract being
                                                              terminated by the employer before the date of expiry
2.    Member States may exclude certain contracts of          specified, before completion of the task specified or
employment — or employment relationships — from               before the occurrence of the event specified, the
the application of this Section by reason of their            worker shall be entitled to compensation equal to the
special nature or of the special needs of certain             remuneration which he would have received had the
sectors of activity.                                          contract not been terminated early.
Such contracts      are listed in an Annex to this
Directive.                                                    2.    The provisions of paragraph 1 shall be without
                                                              prejudice to the application of national law
                                                              concerning force majeure or serious misconduct on the
3.    In the event of a breach of the above provisions,
                                                              part of the worker.
the contract of employment shall be deemed to be of
indefinite duration.
                                                                                       Article 19
4.    Member States may derogate from the
provisions of paragraphs 1 and 3 where workers                The employer shall be required to inform the rep-
                                                              resentatives of his employees when he recruits
(') OJ No L 283, 28. 10. 1980, p. 23.                         workers on fixed-duration contract.
 ---pagebreak--- 19.5.82                      Official Journal of the European Communities                             No C 128/7
                      Article 20                           provisions to comply with this Directive not later than
Workers on fixed-duration contract shall be deemed          1 January 1984 and shall forthwith inform the
to form part of the workforce for the purposes of           Commission thereof.
determining such of the undertaking's social
obligations under law, collective agreements or            2.    Member States shall communicate to the
customary industrial practice in the undertaking as        Commission the texts of the laws, regulations and
are linked to the number of workers employed.              administrative provisions which they adopt in the field
                                                           covered by this Directive.
                      Article 21
Workers employed on limited-duration contract shall                               Article 23
not be recruited or used to perform the duties of
employees who are on strike.                               Within two years following expiry of the period laid
                                                           down in Article 22, Member States shall transmit all
                                                           relevant information to the Commission in order to
                     SECTION V                             enable it to draw up a report on the application of
                 FINAL PROVISIONS                          this Directive fpr submission to the Council.
                      Article 22
                                                                                  Article 24
1.    Member States shall bring into force the
necessary laws, regulations and administrative             This Directive is addressed to the Member States.